In this post, I compare what Director of National Intelligence Mike McConnell revealed yesterday about why Democratic bills amending FISA were unacceptable with the content of those bills. The comparison shows that DNI McConnell found it unacceptable to require the government to:
- List what the minimization procedures were that protect data collected from Americans
- Allow either a FISA judge or Congress to review its compliance with its own minimization procedures
In short, the government promises it will protect American persons' data, but it refused to allow any meaningful oversight of that promise.
McConnell Reveals that Democratic Requirements on Minimization Are Too Harsh
Along with blabbing about the fictional "surgical" precision of the Administration's warrantless wiretap program yesterday, Mike McConnell also revealed why the Administration found the Democrats' bills to amend FISA unacceptable: because of some restrictions their bills made on minimization procedures.
So I walked over to the chamber and as I walked into the office just off the chamber, it's the vice president's office, somebody gave me a copy. So I looked at the version and said, 'Can't do it. The same language was back in there.'
Q: What was it?
A: Just let me leave it, not too much detail, there were things with regard to our authorities some language around minimization.
Minimization refers to what the Administration does with information that they collect on people in the United States when they get that information incidentally while tapping someone purportedly outside of the US. This matters to you, because it determines how the Administration will ensure that, if they collect your end of the phone call when you call Pakistan, they don't get to keep or use any part of your end of the phone call that isn't absolutely necessary for the spooks to interpret the wiretap.
McConnell Tries to Deny Withdrawing Support from the House Bill
Helpfully, McConnell also specified how he responded to the bills the Democrats and Republicans proposed leading up to August 4. McConnell is basically trying to dismiss Democratic claims that he reneged on his support for their bill and in the end sided with the Administration's harsher bill.
So we kept going back and forth, so we sent up a version like Monday, we sent up a version on Wednesday, we sent up a version on Thursday. The House leadership, or the Democratic leadership on Thursday took that bill and we talked about it. And my response was there are some things I can't live with in this bill and they said alright we're going to fix them. Now, here's the issue. I never then had a chance to read it for the fix because, again, it's so complex, if you change a word or phrase, or even a paragraph reference, you can cause unintended ...
Q: You have to make sure it's all consistent?
A: Right. So I can't agree to it until it's in writing and my 20 lawyers, who have been doing this for two years, can work through it. So in the final analysis, I was put in the position of making a call on something I hadn't read. So when it came down to crunch time, we got a copy and it had some of the offending language back in it. So I said, 'I can't support it.' And it played out in the House the way it played out in the House. Meantime on the Senate side, there were two versions being looked at. The Wednesday version and the Thursday version. And one side took one version and the other side took the other version. The Thursday version, we had some help, and I didn't get a chance to review it. So now, it's Friday night, the Senate's voting. They were having their debate and I still had not had a chance to review it. So, I walked over, I was up visiting some senators trying to explain some of the background. So I walked over to the chamber and as I walked into the office just off the chamber, it's the vice president's office, somebody gave me a copy. So I looked at the version and said, 'Can't do it. The same language was back in there.'
Q: What was it?
A: Just let me leave it, not too much detail, there were things with regard to our authorities some language around minimization. So it put us in an untenable position. So then I had another version to take a look at, which was our Wednesday version, which basically was unchanged. So I said, well certainly, I'm going to support that Wednesday version. So that's what I said and the vote happened in the Senate and that was on Friday. So now it rolled to the House on Saturday.
McConnell talks about three bills:
- The House version, which failed as H3356.
- The Thursday Senate version, S2911.
- The Wednesday version, which eventually passed as S1927.
From McConnell's description, we know that he found several things about H3356 unacceptable, probably minimization and some other things. And we know that his primary complaint with S2911 was its requirements on minimization. By comparing what each of these bills require in terms of minimization, we can figure out what was unacceptable to the Administration--and therefore what we can presume they're doing with data on US citizens and permanent residents.
As I understand it, H3356 requires the government to meet existing guidelines on minimization. It has a weakly-worded requirement that the government provide details that allows the FISA judge to "assess the proposed minimization procedures." And it allows--but does not require--the FISA judge to review the minimization procedures of a program.
Here's the analysis:
An application requires the government to provide
a statement of the means by which the electronic surveillance will be effected and such other information about the surveillance techniques to be used as may be necessary to assess the proposed minimization procedures.
It requires the government, in its application for a program, to certify that
the proposed minimization procedures meet the definition of minimization procedures under section 101(h).
And the bill repeats this requirement, later, giving the Attorney General responsibility for ensuring that those minimization procedures are compliant.
MINIMIZATION PROCEDURES- The Attorney General shall ensure that any electronic surveillance conducted pursuant to paragraph (1) or (2) is in accordance with minimization procedures that meet the definition of minimization procedures in section 101(h)
When the FISA judge approves the application, he must
direct the applicant to follow the minimization procedures as proposed or as modified by the court.
The House bill gave the FISA judge the power to review the government's compliance with its minimization procedures:
ASSESSMENT OF COMPLIANCE WITH MINIMIZATION PROCEDURES- At or before the end of the period of time for which electronic surveillance is approved by an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
As I understand it, S2011 requires the government's minimization procedures to meet the requirements of the existing FISA bill. It requires the government to tell the FISC what those minimization procedures are and directs the FISA judge to assess those procedures before approving the order. And it requires the government to tell Congress if it screws up its own minimization procedures.
Here's the analysis:
S2011 emphasizes the importance of minimization in the description of its purpose:
To provide for a procedure before the FISA Court for an order, which may be amended as necessary at the request of the Government with the approval of the Court, authorizing procedures, guidelines, means or methods that will permit the collection of intelligence between foreign persons located outside the United States, while bringing incidental contacts with United States persons at home or abroad into compliance with existing law and minimization procedures. [my emphasis]
It requires the government to certify in its application that its program meets the then-existing minimization requirements of FISA.
the proposed minimization procedures meet the definition of minimization procedures under section 101(h)
And as part of its application, the government must describe its minimization procedures:
MINIMIZATION PROCEDURES- An application for reauthorization of an order issued under this section, shall contain a description of the Government's minimization procedures.
It requires the FISA judge, when reviewing the application, to assess
the minimization procedures to be used with respect to United States persons from such electronic surveillance activity
When the FISA judge issues an order, the judge must,
approve the minimization procedures with respect to United States persons [and] direct the applicant to follow the procedures referred to in section 105B(b)(1)(B)(i) and the minimization procedures submitted by the Government as approved
And once a quarter, the Administration must report to Congress' Intelligence Committees and report, among other things,
a description of any incidents of non-compliance with respect to minimization procedures and approval requirements concerning U.S. persons;
As I understand it, S1927 (I'm working with the version that passed--I haven't checked whether the requirements for minimization changed in the three versions of the bill)--requires very little in the way of minimization requirements. The government must only certify that its program meets the existing definition of minimization procedures, and that any collection accord with those minimization procedures. There is no requirement that the government reveal its minimization procedures, nor that someone--the judge or Congress--review them.
It requires the government to certify that
the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).
It requires any collection of information to meet the Attorney General's minimization procedures.
An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General.[my emphasis]