rssStuff That’s Missing From the Inspectors General Report on Warrantless Surveillance
Friday, July 10, 2009 at 5:28 pm
- 16 Comments
1. Any ballpark estimate — any number at all, really — of how many Americans had their communications intercepted by the NSA through the “President’s Surveillance Program.” The fact that this is missing from an inspectors general report is a glaring oversight.
2. The error rate in collecting terrorism communications. According to the inspectors general of the CIA, FBI and NSA, much if not most of the information collected by the program was unrelated to terrorism. The NSA inspector general found “no evidence of intentional misuse” of the surveillance efforts. Which is groovy. But it still doesn’t tell us how much irrelevant data the program collected, which is a crucial question when determining its efficacy.
3. How much so-called Fruit of the Poisoned Tree resulted. That’s a legal doctrine referring to evidence that has to be thrown out of court. Long story short: if an investigation or a technique to get information is inadmissible in court, no evidence yielded by such methods can be used either. Warrantless surveillance is most certainly a case that would generate inadmissible evidence. That’s one of the issues at stake in yesterday’s al-Haramain filing that I wrote about. And it’s huge. If information from warrantless surveillance made its way into indictments or prosecutions, then those cases are jeopardized. That’s the sort of thing that lets terrorists out on the streets.
Check this out, for instance: the Justice Department “was aware as early as 2002 that information collected under the PSP could have implications for DOJ’s litigation responsibilities under Rule of Criminal Procedure Rule 16 and Brady v. Maryland.” Rule 16 and Brady prevent prosecutors from withholding germane information from a defendant — like, you know, whether part or all of an investigation is based on an illegal search. But what happened? “[N]o DOJ attorneys with terrorism prosecution responsibilities were read into the PSP until mid-2004, and as a result DOJ continued to lack the advice of attorneys who were best equipped to identify and examine the discovery issues in connection with the PSP.” That means that from 2001 to 2004, U.S. attorneys could have been given — from FBI or intelligence officials — information relevant to a terrorism prosecution that they would have no way of knowing came from a poisoned tree like the PSP, and could therefore never have disclosed that fact to defense counsel. And yet the report doesn’t tell us how often that happened.
Relatedly, this is dense but important:
Chapters Three and Six of the DOJ IG [inspector general] report describe how DOJ and the [Foreign Intelligence Surveillance Act (FISA) Court] addressed the impact PSP-derived information had on the FISA process. The DOJ IG concluded that it was foreseeable that [PSP-derived] information might impact the process and that the initial delay in reading anyone from DOJ’s Office of Intelligence Policy and Review (OIPR) or the [FISA Court] into the PSP unnecessarily jeopardized DOJ’s relationship with the Court.
That’s hard to follow, but what it appears to mean is that OIPR, the office responsible for generating FISA warrants, had no idea if information it submitted as probable cause to the FISA Court for such a warrant came from PSP surveillance. OIPR whistleblower Thomas Tamm realized in 2004 that there were special procedures for some warrant submissions that seemed to come from a certain subset of NSA information; he had no idea what PSP was. We still don’t know how many warrants for the FISA Court effectively laundered dirty information into the criminal-justice process.
Update: Sorry, just two more.
4. Any assessment, at all, of the legality of the warrantless surveillance programs collectively called PSP. Just a total dodge on this one.
5. Relatedly: the words “exclusive means.” Like for instance, the inspectors general write: “Prior to September 11, 2001, the Foreign Intelligence Surveillance Act of 1978 and Executive Order 1233 were generally viewed as the principal governing authorities for conducting electronic surveillance for national security purposes.” Well, not exactly. What FISA actually says is this:
The Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
My emphasis. By not mentioning these crucial words in the FISA statute, the inspectors general look like they’re running away from addressing the question of PSP’s legality.
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16 Comments
Pingback posted July 11, 2009 @ 1:58 am
[...] And of course there are mundane questions, which Spencer Ackerman raises here: [...]
Pingback posted July 11, 2009 @ 4:01 am
[...] Read the original: Stuff That’s Missing From the Inspectors General Report on Warrantless Surveillance [...]
Comment posted July 11, 2009 @ 8:19 am
I have documents pertaining to allegations of illegal electronic surveillance, obstruction of justice & making false statements in writing to Congress in regards to the documented “existence” of a federal internal affairs investigation which the U.S. Marshals Service denied existed when questioned by Congress. Please review the supporting information within my website. Thank you.
Comment posted July 11, 2009 @ 4:40 pm
Is the scope of the surveillance sweep described in the report really new information? I have had the impression from testimony of the telecoms last year that they were collecting everything from anybody and everybody and there was so much of it that it was almost impossible to decipher.
Comment posted July 11, 2009 @ 9:57 pm
Now when everybody your neigboor your Xhusband anyone,can get information about your bank account and who you talk to and have you stalkt and harasst for free,because TSA/Business/Residental/Contracters can do what ever they want to I was told they have plenty of money and time.This is a open field for Appartments buildings,for them to make cash money.I can go on and on why because I'm a vitume the ript my life appart.I have always been a leagal permanent citezen,escapet for my life.came back.and now I'm a citezen.What do I do now,I have nothing left
Pingback posted July 12, 2009 @ 9:42 am
[...] best reportorial digging and analysis is taking place elsewhere. One of the best, Spencer Ackerman, spells out what is missing from the reports, and why what’s missing is every bit as important …. Some great grist for the legalistic mills of the Esq.’s among us. El Somnambulo would love [...]
Comment posted July 12, 2009 @ 2:38 pm
The way this government is treating its citizens, it will be but a short time before we're shaking hands with the illegals swimming north, while we swim south!
When you have people like Bush/Cheney and their whole administration still free, with no prosecution in sight…is scary.
Comment posted July 12, 2009 @ 4:34 pm
Thanks for the “exclusive means” quote. (For some reason it occurred to me, on reading “Fruit of the Poisoned Tree”, that PSP also stands for “Paralytic Shellfish Poisoning”…) ^..^
Comment posted July 12, 2009 @ 4:36 pm
You're right. There have been well-grounded suspicions and reportorial accounts — check out Jim Risen's “State of War,” for instance — about the “PSP” including data-mining and other far-reaching surveillance activities beyond the so-called Terrorist Surveillance Program. But what we haven't ever had is official government confirmation that these activities took place. We still don't have total confirmation/refutation of the substance of that, as the report uses the euphemistic term “Other Government Activities” to describe everything that isn't TSP in the PSP. But we have way more than we did before Friday in that regard.
Pingback posted July 13, 2009 @ 3:27 pm
[...] -Stuff That’s Missing From the Inspectors General Report on Warrantless Surveillance [...]
Comment posted July 15, 2009 @ 3:45 am
Kudos to those of us who helped bring CIA & NSA abuses of power to light. This is a quality of life issue for all of us. It is my belief that some of the abuses of NSA & CIA intelligence technology involves more than just data mining, warrantless wiretapping and email surveillance. The intelligence community won't talk about synthetic telepathy, remote mind control technology, or the testing and use of military developed electromagnetic weapons by NSA Domestic Intelligence. Checkout http://www.freewebs.com/wiggidy
Comment posted July 16, 2009 @ 5:55 am
This sounds like a job for Obama's Federal Police Force. Who really cares about drug gangs, illegal immigrants, ACORN and Moslem terrorists when the real problems are those anti-abortion, pro-gun, homophobic evangelicals. The Vigilant Eagle program is kept very busy identifying military veterans who are sticking to their guns & religion. Amazingly this is the same group targeted to work for Homeland Security and soon Obama's Storm Troopers.
Comment posted July 27, 2009 @ 4:49 pm
You're missing the point about the il/legal stuff (para 3). If you are taken (arrested?) for this stuff you are held w/o any lawful justification.
You're held, not in jail, but in a place like gitmo, and the 'evidence' is used to hold you there w/o a true trial or recourse to the ''justice' system.
The point of the illegality is just to hold/torture you, not to do so legally/lawfully/constitionally.
And if all this fails, the 'authorities' can just produce a quantity of some controlled substance.
Only two kinds of laws are specifically prohibited in the constitution: ex-post facto and bills of attainder. Everyone knows about the first, almost no one about the second. Thus does our ignorance keep us in thrall.
Comment posted February 1, 2011 @ 2:52 am
That’s hard to follow, but does it mean that OIPR, the office responsible for generating FISA warrants, had no idea if information it submitted as probable cause to the FISA Court for such a warrant came from PSP surveillance.
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