Friends,
The Pledge of Resistance-Baltimore will do its annual Interdependence Day visit
to the National Security Agency. We will depart at 10:15 AM on July 4 for
Fort Meade, and then vigil at the NSA from 11 AM to noon. We will then
have a 6 PM potluck picnic. RSVP to me at 410-323-1607 or mobuszewski2001 at
comcast.net. I will inform you as to where we are meeting to carpool to
the NSA and the site of the picnic. Get to know better the government
agency which is keeping close attention to you.
Kagiso,
Max
IN
2010, THE GOVERNMENT TRIED TO USE SECTION 702 AGAINST US PERSONS
I’m
working my way through the FISA related documents released last week. And I wanted to point out
something that happened around October 2010: the NSA tried to turn 702 into a
domestic surveillance program.
First, some
background. Before 2011, it appears the government got 702 certificates
approved every six months. Also, because the initial certificates were approved
a month apart (in part because the initial PAA certificates were also approved
a month apart for some really interesting reasons), the government submitted
two sets of documents. That’s what explains the nearly identical pairs of
documents released last week (Documents 11 and 5 approve 2009 certs, and
Documents 4 and 2 approve 2010 certs).
Sometime in
late summer to fall 2010, the government submitted a pretty dramatically
altered request (see Document 16). [Update: This targeting certificate from 2010 was submitted on
July 16, though that feels like odd timing and none of the targets are
described as including US persons.]
As part of that, the
government defined one of the targets to include US persons (albeit ones
apparently located overseas).
Moreover, the government has defined the term [redacted]
to include US persons, which raises the question whether permitting the
intentional acquisition of communications of US persons reasonably believed to
be located outside the United States is consistent with the requirements of 50
U. S.C. § 1881 a(b)(3).
In
addition, the government requested to keep and disseminate any
US person or domestic data it found “to the extent reasonably necessary to
counter any imminent threat to human life or the national security that is
related to the target.”
Another significant change to the minimization
procedures relates to the provisions that allow NSA to retain, process, and
disseminate any communication acquired while a target of 702 collection was
inside the United States or after a target has been determined to be a United
States person, “to the extent reasonably necessary to counter any imminent
threat to human life or the national security that is related to the target,
including obtaining authorization against the target pursuant to another
section of the Act.” NSA Minimization Procedures at 7-10.
Whereas later
minimization procedures have language about protecting imminent threats
(defined broadly to include property), this request included vague “threat to
national security” language.
Finally, John Bates
implied that the submission implicated some prior court decision(s), including
one by the FISCR.
Remarkably, these
prior decisions (as well as the name of the target that includes US persons)
were redacted with the b(7)E law enforcement technique exemption, not the b(1)
or b(3) that covers most of the other redactions in these memos. I can’t recall
any other b(7)E redaction in all the FISA orders I’ve read.
Also note, that in
2010, there were only two known FISCR opinions, the one tearing down the wall
in 2002, and the one authorizing PRISM in 2008; this may be an as yet
unidentified FISCR opinion.
By all appearances,
in fall of 2010, the government tried to get approval to use 702 against US
persons.
In response to this
request, Bates basically said, “submit a legal justification.”
To date, the government has not provided the Court with
an adequate legal basis upon which to undertake this review and make the
required findings. Therefore, and in accordance with Rule 10(a)(ii) of the
Foreign Intelligence Surveillance Court Rules of Procedure, the Court
hereby ORDERS the government to file a written memorandum of law that
addresses the legal issues identified in this Briefing Order and any others
that have not previously been presented to the Court.
Document 4 and Document 2 reveal that the government submitted
that memorandum. But after the court saw it and discussed it, the government
basically said, “um, nevermind”
The
government timely filed its Memorandum of Law on [redacted] 2010.
The Court then discussed the issues presented with
representatives of the government on [redacted] 2010, at which time the Court
identified certain concerns regarding the government’s submissions. On
[redacted], 2010, the Attorney General and the DNI executed two amendments
regarding the [redacted] Submission, which were filed with the Court as part of
the [redacted] Submission. These amendments have the effect of reverting to the
use of targeting and minimization procedures previously approved by the Court
in the context of prior certifications.
Just to make sure
the government got the message, Bates emphasized that his 2010 approvals were
limited to non-US persons outside of the US.
Like the acquisitions approved by the Court in all of
the Prior 702 Dockets, acquisitions under are limited to “the targeting of
non-United States persons reasonably believed to be located outside the United
States.”
This all had to have
happened after July 2010 (because the approvals cite Bates July 2010 opinion restarting the PRTT dragnet).
But the approvals almost certainly happened in November, because the
government submitted its reauthorization applications on
April 20 and 22 the following year and they were still doing reauthorizations
every six months with applications submitted a month in advance.
So in 2010, the
government asked to use 702 to spy on Americans, Bates called them on it, and
they backed down.
Sort of. On May 2,
the government confessed for the first time that it had been collecting US
person data all along.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski [at] verizon.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
No comments:
Post a Comment