Response to Robert Merry

A few weeks ago, the website of The American Conservative magazine published a lengthy article by its brief-tenured and outgoing editor, Robert W. Merry, carrying the sober and understated headline “The Nunes Memo and the Death of American Journalism.” Why was journalism dead? Because of me! More specifically, because when the famous memo prepared at the direction of House Intelligence Committee chairman Devin Nunes was released, I annotated it in a way that Merry did not like and saw as exemplifying a broader abandonment of good old fashioned journalistic values.

Merry’s critique inadvertently displayed cluelessness about several matters,  such as when he couldn’t understand the relevance (“out of the blue”) of flagging the memo’s tarring of Rod Rosenstein and its implications for the Mueller investigation, suggesting that Merry was completely unaware of the campaign then overtly underway to use the rollout of the memo to set Trump up to fire Rosenstein.

But Merry’s primary complaint was about annotations that flagged specific factual claims in the Nunes Memo that Democrats and law enforcement officials who had read the same underlying FISA materials contested as inaccurate or misleading. (Recall the context that Republicans had refused to put out the official Democratic rebuttal memo at the same time they made the Nunes Memo public.) Merry maintained that telling readers that certain parts were disputed was inappropriate, or as he put it, amounted to “ostentatiously answering serious allegations with counter-speculation by way of spreading confusion and thus undermining the allegations.”

His rationale was foggy. In some places, he seemed to recognize that I was reporting out a dispute that had two sides — drawing on confidential conversations with sources and citing a detailed statement issued that same day by Adam Schiff — but he maintained that what a real journalist would have done was just present the Nunes Memo’s allegations to readers as uncontested fact, like Kimberly Strassel of the Wall Street Journal opinion pages. (No, really!) In other places, he seemed not to recognize where the critique was coming from, bizarrely accusing me of merely speculating by myself, without any evidence, that certain claims in the Nunes Memo might be contestable.

Anyway, this was self-evidently a bad take from top to bottom, so I basically ignored it other than snarking on Twitter about one particularly dumb part.

But after the Democratic rebuttal memo belatedly came out and showed that our readers had received the full picture of the dispute when it still mattered, I made the mistake of paying a tiny bit more attention to him with a second tweet.

That unleashed a second confused screed. Neither of them appear to have had any impact — not even Russian bots are retweeting them, which is quite an accomplishment for pro-Nunes Memo pieces — but still, since these things live on forever in Google search, here is my brief rebuttal to it:

Lawmakers Warn Against Any Attempt to Jam 702 Surveillance Reauthorization Without a Real Debate

A bipartisan group of 10 senators today sent a letter to Senate Majority Leader Mitch McConnell today urging him not to try to attach an extension of the expiring warrantless surveillance program law, Section 702 of the FISA Amendments Act, to some other must-pass bill and trying to jam it through without debate. If there is no time for a debate now, they “ask that reauthorization be limited to a matter of months to allow time for proper debate on the issue in the early part of 2018.”

Separately, two days ago, 34 House members wrote a letter to House Speaker Paul Ryan to “demand” that 702 reauthorization be debated as a stand-alone bill rather than attached to the continuing resolution that Congress will have to take up before the end of the month to keep the government from shutting down.

“The House exists to debate the very sorts of issues raised by the FISA Amendments Act, and we insist on the opportunity to do so,” they wrote.

Tick tock. But! Important reminder: Notwithstanding the implication some rhetoric about the imminent sunset, the Trump administration believes collection can lawfully continue under the program through April, when the current court orders expire, even if Congress does let Section 702 lapse on December 31. It is therefore not preparing to shut down the program on New Year’s Day no matter what happens.

Here are the two letters:


Trump signing statement challenges 42 statutory provisions of the National Defense Authorization Act for 2018

When President Trump signed the fiscal year 2018 iteration of the annual National Defense Authorization Act this week, he appended a signing statement challenging several dozen of its provisions. Obviously he didn’t write the signing statement himself, but his legal team – spanning the Office of Legal Counsel, the Office of the White House Counsel, and possibly OMB – ghostwrote it. It singles out 42 provisions as raising unconstitutional intrusions into the Trump administration’s understanding of executive power, while challenging another on policy grounds.

Among them, while Trump declares again that he fully intends to keep the Guantanamo Bay prison open and use it, he reiterates “the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief.”

Here is the statement:

 

The White House
Office of the Press Secretary
For Immediate Release
December 12, 2017

Statement by President Donald J. Trump on H.R. 2810

Today, I have signed into law H.R. 2810, the “National Defense Authorization Act for Fiscal Year 2018.” This Act authorizes fiscal year 2018 appropriations for critical Department of Defense (DOD) national security programs, provides vital benefits for military personnel and their families, and includes authorities to facilitate ongoing military operations around the globe. I am very appreciative that the Congress has passed this bill to provide the DOD with the resources it needs to support our Armed Forces and keep America safe. I note, however, that the bill includes several provisions that raise constitutional concerns.

Several provisions of the bill, including sections 1046, 1664, 1680, and 1682, purport to restrict the President’s authority to control the personnel and materiel the President believes is necessary or advisable for the successful conduct of military missions. Additionally, section 1601 provides that the Commander of Air Force Space Command, a military officer subordinate to the civilian leadership of the President as the Commander in Chief, the Secretary of Defense, and the Secretary of the Air Force, has “sole authority” over certain matters. While I share the objectives of the Congress with respect to maintaining the strength and security of the United States, my Administration will treat these provisions consistent with the President’s authority as Commander in Chief.

Certain other provisions of the bill, including sections 350, 1011, 1041, 1202, and 1227, purport to require that the Congress receive advance notice before the President directs certain military actions. I reiterate the longstanding understanding of the executive branch that these types of provisions encompass only military actions for which such advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to protect the national security of the United States.

Sections 1033 and 1035 restrict transfers of detainees held at the United States Naval Station, Guantanamo Bay. I fully intend to keep open that detention facility and to use it for detention operations. Consistent with the statement I issued in signing H.R. 244, I reiterate the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief. Additionally, section 1035 could, in some circumstances, interfere with the ability of the United States to transfer a detainee who has been granted a writ of habeas corpus.

I also strongly object to section 1633, which threatens to undermine the effective operation of the Executive Office of the President by making full funding for the White House Communications Agency (WHCA) contingent upon the submission of a report on a national policy for cyberspace, cybersecurity, and cyberwarfare. I take cyber‑related issues very seriously, as demonstrated by Executive Order 13800, which has initiated strategic actions across executive departments and agencies that will improve the Nation’s cyber-related capabilities. Among other things, WHCA plays a critical role in providing secure communications to the President and his staff. The Congress should not hold hostage the President’s ability to communicate in furtherance of the Nation’s security and foreign policy. I look forward to working with the Congress to address, as quickly as possible, this unprecedented and dangerous funding restriction.

Several provisions of the bill, including sections 1069, 1231, 1232, 1239, 1239A, 1258, 1259, 1263, 1271, 1279A, and 1607, could potentially dictate the position of the United States in external military and foreign affairs and, in certain instances, direct the conduct of international diplomacy. My Administration will treat these provisions consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs to determine the terms on which recognition is given to foreign sovereigns and conduct the Nation’s diplomacy.

Section 1244(b) purports to limit certain expenditures unless, under section 1244(c), the President submits to the Congress a plan to impose sanctions — including asset blocking, exclusion from the United States, and procurement bans — on certain persons for failing to comply with the Intermediate-Range Nuclear Forces (INF) Treaty. My Administration will apply these provisions consistent with the President’s constitutional authority to conduct foreign relations, including the President’s authority under Article II, section 3 of the Constitution to “receive Ambassadors and other public Ministers.” Section 1245 purports to direct the United States Government to consider the RS-26 ballistic missile to be a breach of the INF Treaty “for purposes of all policies and decisions,” if the President, with the concurrence of certain other executive branch officials, were to make certain legal and factual determinations. My Administration will apply this provision consistent with the President’s constitutional authority to identify breaches of international agreements by counterparties.

Section 910 purports to elevate the current Deputy Chief Management Officer of the DOD to the position of Chief Management Officer, which would result in an expansion of duties, along with an increase in both responsibility and pay. While my Administration supports the policy of section 910, the provision raises constitutional concerns related to the President’s appointment authority. My Administration will devise a plan to treat this provision in a manner that mitigates the constitutional concerns, while adhering closely to the intent of the Congress.

Section 1097 purports to reauthorize the Office of Special Counsel, including by continuing the existing tenure protections for the Special Counsel. The Special Counsel is a principal officer of the United States who performs executive functions, and has both broad authority and long tenure insulated from the President’s removal authority. I reiterate the longstanding position of the executive branch that such insulation of a principal officer like the Special Counsel raises serious constitutional concerns.

Section 1653 purports to require the Nuclear Weapons Council to make an assessment and provide a report to the congressional defense committees in response to legislative activity by a single house of Congress. To direct the Council’s operations in this manner, the Congress must act in accord with the requirements of bicameralism and presentment prescribed in Article I, section 7 of the Constitution. Accordingly, my Administration will treat section 1653 as non-binding, and I will instruct the Council to take action in response to this provision only as an exercise of inter-branch comity — i.e., only insofar as such action would be practicable and consistent with the Council’s existing legal responsibilities.

Several provisions of the bill, including sections 737, 1097, 1244, 1631, 1632, and 1669, as well as language in the classified annex to the joint explanatory statement of the committee of conference, purport to mandate or regulate the submission to the Congress of information — such as deliberative process and national security information — protected by executive privilege. My Administration will treat these provisions consistent with the President’s constitutional authority to withhold information, the disclosure of which could impair foreign relations, national security, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties. Additionally, I note that conditions in the classified annex to the joint explanatory statement of the committee of conference are not part of the text of the bill and do not carry the force of law.

Several provisions of the bill, including sections 513, 572, 807, 1648, 1676, 1696, 2878, and 3117, purport to require executive branch officials under the President’s supervision to recommend certain legislative measures to the Congress. My Administration will treat those provisions consistent with Article II, section 3 of the Constitution, which provides the President the discretion to recommend to the Congress only “such Measures as he shall judge necessary and expedient.”

DONALD J. TRUMP

THE WHITE HOUSE,

December 12, 2017.

The US Has Deployed Troops To Lebanon Now, and Other Deltas in the New War Powers Resolution Letter

The White House last night sent its semi-annual War Powers Resolution letter to Congress disclosing deployments of U.S. troops “equipped for combat” (a sometimes ambiguous category – guards at Guantanamo count, but not troops along the DMZ in the Korean Peninsula). I compared it to the June 2017 letter and identified the following deltas:

  1. The new letter keeps secret US troop levels in Afghanistan, Iraq, Syria and Cameroon. By contrast the previous letter had disclosed that they were then around 8,448; 5,262; 503; and 285, respectively.
  2. The new letter deletes any reference to the United Nations Security Council having authorized the continuing Afghanistan mission.
  3. The new letter acknowledges that the US has struck several times at Syrian government and pro-Syrian government forces, asserting that they were “lawful” to counter threats to “U.S. and partner forces” engaged in the counter-ISIS campaign.
  4. The new letter acknowledges that US forces, in addition to striking at AQAP (and, for the first time, ISIS) in Yemen, have also been providing logistics and other support to “regional forces” (e.g. the Saudis) combating the Houthis in Yemen’s civil war.
  5. The new letter reveals that the number of US troops stationed in Jordan has dropped from about 2,850 to about 2,300
  6. The new letter acknowledges for the first time that the US has stationed about 100 troops in Lebanon to help the Lebanese government as it fights ISIS
  7. The new letter says about 800 US troops are in now Niger, up from about 575 six months ago
  8. The new letter acknowledges that four service-members were killed in the ambush in Niger in October. It says the perpetrators were “an element assessed to be part of ISIS.”
  9. The new letter says US troops in Egypt have dropped to about 400, from 700 as of June
  10. The new letter says US troops in Kosovo have dropped to  640, from 774

702 nuggets: no court-ordered encryption backdoors (yet), CIA working on tracking its USP metadata queries, and more

The Office of the Director of National Intelligence has provided some written answers to questions submitted by senators like Dianne Feinstein, Ron Wyden, and Angus King during Senate Intel hearings over the summer about the FISA Amendments Act Section 702 warrantless surveillance program. Some of this is well covered territory, like Wyden’s fighting with the intelligence community about why they can’t/won’t estimate the volume of incidentally intercepted American information in the repository or the FBI’s inability/refusal to count its US person queries, but some weedy nuggets of interest jump out. Posting here for specialists.

  1. DEFINITION OF “DERIVED FROM” AND PARALLEL CONSTRUCTION: They say they’re basically following the Title III wiretap “fruit of the poisonous tree” approach to defining when evidence is derived from 702 (such that notice to defendant is required), but essentially concede they’re not considering evidence to be “derived from” 702 if they decided they could fit it into the doctrines of independent source, inevitable discovery, and attenuation. (Since there’s not been a 702 notice to a defendant for a long time after the 2013-14 flurry that followed Don Verrilli’s intervention, obviously this exception has now swallowed the rule in how agents gather evidence in new cases. Still, the one-time flurry of notices did give several regular courts the opportunity to scrutinize the constitutionality of 702.) (PG 18/PDF 11)
  2. USE OF 702 FOR TRANSNATIONAL CRIMES: The government (since Bob Litt era) has said it will restrict the use of 702 obtained/derived information in criminal cases to six of categories of serious crime, among them “transnational” crimes. But it’s still not defined the scope and limits of what counts as a transnational crime. In any case it says there haven’t been any transnational crime cases that used 702 information so far, only terrorism cases. (But see the big caveat above about the government’s use of parallel construction to launder 702 information.)  (PG 20, PDF 13)
  3. CIA SEARCHES OF US PERSON METADATA: While the CIA doesn’t keep track of its queries of the 702 metadata repository for U.S. person information (which we knew), it’s re-engineering its systems and expects to be able to start providing counts by the end of calendar year 2018. (PG 21, PDF 14)
  4. USING 702 TO COMPEL PROVIDERS TO BUILD BACK DOORS IN ENCRYPTION: 702 says the government may direct providers to provide technical assistance in carrying out authorized surveillance and may get a court order to compel compliance. Wyden has been raising alarms about the possibility it could use this to force providers to build backdoors into their encrypted services or products, although it’s not clear whether he knows that something is actually happening or is instead just issue-spotting a hypothetical worry. Here we see that to date (as of the summer) the government has not sought a court order  to force a provider to build an encryption backdoor. Ambiguity remains: the answer doesn’t say whether or not any providers have been directed to do this by US officials without resorting to a court order. (PG 27/PDF 18)
  5. WHY THE IC SAYS IT CAN’T ESTIMATE THE VOLUME OF INCIDENTALLY COLLECTED US PERSON INFO IT HAS COLLECTED: We knew this rationale (which a US official explained to me in September) but now we can see a letter Dan Coats sent to the House Judiciary Committee last July explaining it to Congress, which was kept secret at the time. It says the problem basically boils down to an inability to systematically and reliably identify the location/nationality of non-targets on e-mails. (Wyden disagrees with this.) (PDF 28)

With clock ticking, House Intelligence Committee releases its version of a 702 surveillance bill

The law that supports the NSA/FBI warrantless surveillance program, the FISA Amendments Act Section 702, is set to expire on December 31, 2017, if Congress does not act to extend it. There are a proliferating array of rival bills to do so, some with modest reforms, some with sweeping reforms, and some with scant or no reforms. As things stand, without a month to go, it’s highly uncertain what is going to happen. There’s clearly a desire among some Senate leaders (e.g. Senator Richard Burr, the North Carolina Republican who leads the Senate Select Committee on Intelligence) to jam through a “clean” extension or to make it permanent without reforms, perhaps by attaching it to a bill to keep the government open. But it’s not clear that would pass the House, where  a subset of Republicans  (plus many Democrats) are insisting on new limits to protect Americans’ privacy. Tick tock!

Anyway, on Wednesday evening, the House Permanent Select Committee on Intelligence added its own version of a no-serious-reforms bill to the pile. On quick read for two particular markers, the HPSCI bill, which would extend 702 by four years through December 2021, does not impose a warrant requirement to query the repository for information about an American and does not bar the NSA from turning “abouts” collection back on (but rather requires notice to Congress).

It also expands the definition of a permissible FISA foreign power target to explicitly include transnational malicious hacking organizations that are not primarily made up of Americans, i.e. removing any need to be able to peg it to a foreign state or terrorist group.

Here ’tis:

Revised version of USA Liberty Act (HJC version of 702 bill)

This is the draft manager’s amendment to H.R. 3989, the “USA Liberty Act,” which would extend the expiring FISA Amendments Act Section 702 warrantless surveillance law but impose some changes to it, and which is being pushed by bipartisan leadership in the House Judiciary Committee. It’s been circulating for several days. Among other things, it makes several changes to the wording of the exceptions to the new warrant requirement it would impose on searches for Americans’ information within the repository of e-mails and other content collected without a warrant by targeting foreigners under the 702 program.

702 surveillance legislation: Adding Wyden-Paul “USA Rights Act” to the mix. Bonus: a chart comparing differences with SSCI/Burr & Goodlatte/Conyers HJC bills

Today the Senate Select Committee on Intelligence is marking up, in secret, Chairman Burr’s bill to extend the FISA Amendments Act Section 702 warrantless surveillance program, the FISA Amendments Reauthorization Act. While the bill is not yet public, I published a copy here yesterday, alongside a revised draft of the Goodlatte-Conyers House Judiciary Committee bill, the USA Liberty Act. Now comes a third major stab at legislation to deal with the 702 program, which is set to expire at the end of 2017 if Congress enacts no extension bill, and proposed reforms: Senators Ron Wyden’s and Rand Paul’s USA Rights Act, linked here and also posted below.

The Rights Act will be formally introduced later today, and I suspect Wyden will also propose its text as a substitute amendment to the Burr bill at the SSCI hearing today, and then it will probably be rejected by a majority of the committee, as that is also what happened with the Patriot Act Section 215 expiration/reform fight. [See Power Wars, Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 10 (Outside the Oval Office: Freedom Act I).]

Here is a run-down of some major differences:

Burr’s draft SSCI bill, the FISA Amendments Reauthorization Act of 2017 Goodlatte-Conyers’s HJC bill, the USA Liberty Act of 2017 Wyden-Paul’s bill, the USA Rights Act of 2017
Sunset: Extension of the  Section 702 warrantless surveillance law, which is now set to expire on Dec. 31, 2017, until Dec. 31, 2025 Sept. 30, 2023 Sept. 30, 2021
“Backdoor searches” for Americans’ content within the 702 repository of e-mails etc. collected without a warrant No change: US person queries still permitted without a court order Queries without an order still permitted for intelligence purposes. Queries for criminal purposes would ping the database and say whether there is a hit, but a judicial warrant that there is probable cause for a serious crime would be necessary to view it. Judicial warrant required for any type of query (criminal or intelligence); absent a warrant database would not show whether there was a hit
Collection of “about the target” communications that are neither to nor from the target, which the NSA recently ceased Would permit the NSA, with the FISA Court’s permission, to turn “about” collection back on, with 30 days prior notice to Congress and expedited consideration of any bill to block the resumption Would codify a ban on “about” collection until the sunset of this cycle of 702 reauthorization Would ban “about” collection
Limits on law enforcement use of 702 information against Americans Would limit use of 702 information as courtroom evidence in criminal prosecutions to national-security cases and a list of serious crimes e.g. murder; but imposes no limit on use of 702 information for investigations or civil/administrative cases Would impose no law-enforcement usage limits on investigations or courtroom evidence Would limit law enforcement use across the board (investigations, courtroom evidence, administrative proceedings) to a list of national-security matters
Notice to defendants when they face evidence “derived from” 702 warrantless surveillance No change No change Would tighten definition of what triggers a notification requirement
Chief Justice Roberts’ unilateral power to select which judges serve on the FISA Court No change No change Would impose a check and balance by having the chief judges of each of the 13 circuit courts of appeal nominate  contenders to the chief justice for final selection

 



Wyden Paul USA Rights Act (Text)



Pre-markup SSCI Burr 702 bill draft (Text)



USA Liberty Act – revised version (Text)

Latest FISA Amendments Act 702 surveillance legislation: SSCI, HJC

Lots of legislative action on FISA Amendments Act Section 702 warrantless surveillance is happening with drafts that are not public even though they are not classifed. Here are some.

The Senate Select Committee on Intelligence on October 24, 2017, will mark up – behind closed doors – a bill being pushed by its chairman, Senator Richard Burr, Republican of North Carolina. Burr isn’t showing his draft to the public, and not clear what it will look like when the hearing is done, but here is a copy of the draft legislation, with annotations, heading into that hearing.

Senators Ron Wyden and Rand Paul are developing their own bill, which I imagine Wyden will offer as a substitute amendment on Tuesday but will probably be voted down. (That’s what happened with Patriot Act 215 reform legislation.)

In the House, the bipartisan bloc of House Judiciary Committee leaders (incl Goodlatte and Sensenbrenner, along with Conyers) have produced a revised draft version of their “USA Liberty Act,” which I posted with annotations last week.

Burr’s bill would extend 702 without significant reforms through 2025. The House bill would extend it to 2023 and would do things like codify a ban on “abouts” collection and require judicial warrants for FBI searches for Americans’ information within the repository for criminal but not foreign intelligence purposes. We’ll see whether the Wyden-Paul bill would go further on closing the so-called backdoor search loophole for intelligence searches too; Wyden has been a huge critic of warrantless queries for Americans’ info.

[Update 10/24/2017: Here is a draft of the Wyden-Paul bill, along with a chart comparing major differences among the three rival pieces of legislation.]

So there’s a lot of disagreement heading toward that Dec. 31, 2017, sunset date.







NSA Declassifies Pile of Documents from 2011 Upstream Surveillance Litigation

The National Security Agency has declassified a third (and final) tranche of previously unreleased documents from the docket of a then-secret 2011 Foreign Intelligence Surveillance Court case over upstream Internet surveillance conducted under the FISA Amendments Act/702 program.

Here are the first and second tranches. This third tranche is long a dense – nearly 350 pages – but it seems to largely cover the same ground as was summarized in the most important documents in the second tranche, so I don’t immediately see a stand-alone general reader news story here. I’ve posted the documents on the New York Times website and will put them below as well. There’s some TLDR annotations in the margins on Document Cloud.