In addition to the apparent miscommunication between Mark Udall and Acting (and presumably soon to be confirmed) DOJ National Security Division Head John Carlin, there was an even more telling exchange in today’s hearing. In it, Martin Heinrich asked whether DOJ had yet written down its radical new policy of giving notice to defendants caught using Section 702. Heinrich: As you know in October 2013, after months and months of discussion and debate in which you and the NSD were involved, DOJ adopted a new policy by which Federal prosecutors would inform defendants when they intended to offer evidence informed, obtained, or derived from intelligence collected under Section 702 of FISA. And when you and I met in December you informed me that that policy had not yet been reduced to a formal written policy, and so, Mr. Carlin, I wanted to ask, is that process done yet and has that policy been finalized and if so has it been disseminated in written form? Confirmed: DOJ Uses Section 702 to Get Title I FISA Warrants
If One Judge Gives FISA Review, and Another Judge Gives FISA Review, All Hell Will Break Loose! There have been a couple of developments on the government’s effort to continue its practice of shielding its dragnet from adversarial legal review behind the screen of FISA. First, the 7th Circuit appears to want to punt on the question of whether or not Adel Daoud’s lawyer should be able to review the FISA materials used against him. It claims (incorrectly, I suspect) it may not have the authority to review Sharon Coleman’s decision to give Daoud review. A preliminary review of the short record indicates that the order appealed from may not be an appealable order.Section 3731 of Title 18, United States Code, permits the United States to appeal certain rulings in a criminal case. The district court’s order of January 29, 2014, compelling disclosure of Foreign Intelligence Surveillance Act application materials to defense counsel having the necessary clearance, does not appear to fit within the statute’s list of orders that the government can appeal.
The court that oversees US surveillance has ordered the government to review for declassification a set of secret rulings about the National Security Agency's bulk trawls of Americans' phone records, acknowledging that disclosures by the whistleblower Edward Snowden had triggered an important public debate. The Fisa court ordered the Justice Department to identify the court's own rulings after May 2011 that concern a section of the Patriot Act used by the NSA to justify its mass database of American phone data. The ruling was a significant step towards their publication. Fisa judge: Snowden's NSA disclosures triggered important spying debate | World news
President Barack Obama has taken a lot of criticism from both friend and foe in the wake of recent disclosures about how the U.S. government monitors telephone and Internet traffic. He defended himself recently in an interview with Charlie Rose on June 17, 2013, making several claims in defense of government surveillance. The full discussion is available here, but one exchange in particular struck us as noteworthy. It involves the Foreign Intelligence Surveillance Court, a special court that hears government requests for warrants related to national security investigations. Rose: "So I hear you saying I have no problem with what NSA has been doing." Obama: "Well, let me finish, because I don’t. … (The FBI has) to go to the FISA court with probable cause and ask for a warrant." Barack Obama says the Foreign Intelligence Surveillance Court 'is transparent'
U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court, took the highly unusual step Friday of voicing open frustration at the account in the report and court’s inability to explain its decisions. “In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post. It was her first public comment describing her work on the intelligence court. The inspector general’s draft report is among the many documents leaked by former NSA contractor Edward Snowden, touching off a roiling national debate about the proper balance between the government’s reach into Americans’ lives and the effort to protect the nation in the Internet age. Secret-court judges upset at portrayal of ‘collaboration’ with government
A guide to FISA §1881a: The law behind it ... While President Obama forbid via executive order the use of torture techniques such as waterboarding, or confinement in a small box or coffin, the same executive order cemented the use of isolation, forms of sensory deprivation, use of drugs, and sleep deprivation in the Department of Defense’s Army Field Manual 2-22.3, which is now the U.S. standard for interrogation. In that sense, irrespective of the controversies over waterboarding and the post-9/11 “enhanced interrogation” program approved by John Yoo and other Bush-era government attorneys, much of what was KUBARK lives on.
Simply put, the National Security Agency is an intelligence agency. Its purpose is to monitor the world's communications, which it traditionally collected by using spy satellites, taps on cables, and placing listening stations around the world. In 2008, by making changes to U.S. law, the U.S. Congress enabled the NSA to make U.S. industry complicit in its mission. A guide to FISA §1881a: The law behind it all
Understanding the 2008 Changes to FISA — A Visual Guide (Flowchart) | Ketchup and Caviar (Political Commentary) Understanding Recent Changes to FISA — A Visual Guide (Flowchart) July 11th, 2008 Posted in Politics I have to admit that despite the fact that I read Glenn Greenwald’s blog and have followed his numerous posts on FISA , until recently I haven’t fully understand the law or how it recently changed . I think the complexity of the issue is one of the reasons there isn’t more outrage about or opposition to the revised FISA law. So I took the time to do some careful reading, diagramming as I went. I thought these might be useful to others.
A Guide to the New FISA Bill, Part I Guest Blogger David Kris Marty Lederman and Jack Balkin invited me to submit a post on the FISA modernization bill (H.R. 6304) that was passed on Thursday by the House of Representatives, and that appears to be on the verge of becoming law. A Guide to the New FISA Bill, Part I
A Guide to the New FISA Bill, Part II Guest Blogger David Kris Yesterday, in discussing H.R. 6304, the FISA modernization bill passed by the House on Thursday, I identified the key elements of current FISA, and described what I see as the main legal and operational arguments for and against modernizing the statute. Today, I’d like to describe the Bush Administration’s actual efforts to “modernize” electronic surveillance. A Guide to the New FISA Bill, Part II
A Guide to the New FISA Bill, Part III Guest Blogger David Kris [Here is Part I and Part II] A Guide to the New FISA Bill, Part III
Concurring Opinions I have been following the new FISA Amendments Act of 2008, but I have refrained from chiming in, as many others have been doing terrific blogging on the issue. Of particular note: * David Kris, A Guide to the New FISA Bill (I, II, III) * Wes Alwan, Understanding Recent Changes to FISA — A Visual Guide (Flowchart) * Orin Kerr, The New FISA Law and the Misleading Media Coverage of It * Marty Lederman, The Privacy-Protective Components of the New FISA Law
The Volokh Conspiracy - The New FISA Law Assessing Surveillance Laws in An Era of Sunset Provisions: In my blog post last week on the new FISA Amendments, and a follow-up on Friday, some commenters expressed strong disagreement — and in some cases, downright contempt — at my view that the most natural baseline for assessing the latest FISA Amendments was last year's FISA law, the Protect America Act. Our disagreement raises a conceptually interesting question: How should we characterize the direction of new surveillance laws in an era when so many surveillance laws are being subject to sunset provisions? And applying that to the specific case here, is the Protect America Act the right baseline for the new FISA Amendments? I think the question is tremendously important. Statutory laws require a feedback loop: The public needs to know if their policy preferences are being enacted into law. But the details of surveillance law are a mystery to 99.99% of the population.
Secret Court Ruling Put Tech Companies in Data Bind
The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian. The NSA access is part of a previously undisclosed program called Prism, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says. The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims "collection directly from the servers" of major US service providers. Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied knowledge of any such program.
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April. The order, a copy of which has been obtained by the Guardian , requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing. The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.
Post details: CA3: FISA surveillance led to domestic prosecution, and Patriot Act amendments not unconstitutional; even if they were, Krull wouldn't require exclusion