Sunday, December 16, 2007

Setting Up the Cllinton Did It Too Defense

[Updated below ala Greenwald 12/16/07]
The New York Times tells us today that warrantless government surveillance is much worse than we have heretofore known. The first revelation is that the National Security Agency (NSA) has tried to gain access to the Qwest communication switches which carry primary domestic calls.The second revelation is that the NSA has been trying to get better access to the commercial communication network well before 9/11. The third revelation is that it hasn't just been the NSA conducting such surveillance; the Drug Enforcement Agency (DEA) has been using administrative subpoenas to gain access to to phone records of US citizens and others within the US who place calls to Latin America.

This report comes days before the Senate is about to take up a revision of FISA which may give telecoms immunity from prosecution for cooperating with the federal government on warrantless surveillance. Steve Benen has a good summary and Glenn Greenwald has more details on the implications of all of this.

I would like to focus on the DEA revelation, because whoever is leaking seems intent on implicating the Clinton administration in the domestic spying scandal through the DEA surveillance.
In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.
The reason that this raised a red flag for me is that early in the domestic spying scandal one of the defenses offered of the Bush administration was that the Clinton administration did it too. In fact, Alberto Gonzales used this defense before the Senate Judiciary committee in February of 2006.

But [Senator Arlen]Specter said even the Supreme Court ruled that "the president does not have a blank check" and suggested that the program's legality be reviewed by the FISA court.

"There are a lot of people who think you're wrong. What do you have to lose if you're right?" Specter asked Gonzales.

Gonzales noted that Bush is not the first president to exert such authority and he pointed out Clinton administration Deputy Attorney General Jamie Gorelick testified in 1994 that the president has inherent constitutional authority to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.
Media Matters does a good job of dissecting this talking point. Go take a look.

Today's New York Times story is not the first time that the DEA has been linked to domestic spying. USAToday reported in May of 2006 that
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.
What is new in today's story is that the DEA has independent of the NSA been engaging in warrantless surveillance and that Clinton did it too.

First off has the DEA been breaking the law or do they have the authority to use administrative subpoenas to gain access to telephone and internet records? Let me warn you up front that I'm not a lawyer, but here is what I've found.
21 U.S.C. 876(a) provides that: “[i]n an investigation relating to his functions under this subchapter with respect to controlled substances, listed chemicals, tableting machines, or encapsulating machines, the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant material to the investigation. The subpoena may be used to compel the attendance and testimony of witnesses, and require the protection of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant material to the investigation.”
The DEA does have the authority to issue administrative subpoenas in its regulatory role, but this statute does not give them the authority in to do so in criminal investigations. [See update below.] Does this power extend to telephone and internet records?
Under 18 U.S.C. §2703(c)(2), a provider of electronic communications service or remote computing service can disclose only limited information without notice to the subscriber in response to administrative subpoena served by a governmental entity. Such information consists of the customer’s name, address, local and long distance telephone connection records or records of session times and durations, len gth of service and types of service utilized, telephone or instrument number or other subscriber number or identify, and means and source of payment for such service (including any credit card or bank account num ber) of a subscriber. Other records pertaining to the subscriber, including audit trails/logs, web sites visited and identities of email correspondents, can on ly be obtain ed by search warrant or court order. With prior notice to the subscriber. DEA can also use an administrative subpoena to obtain unopened e-mail (in storage more than 180 days) or opened email still on the provider’s system. The n otice may be delayed for 90 days under the same criteria listed above for information protected by the RFPA. Unopened e-mail storage 180 days or less can on ly be obtain ed by serving a search warrant.
The type of information which the Times reports the DEA was obtaining from telecoms appears to be consistent with this law. However, it is hard to reconcile the uses of these subpoenas to look at calling patterns with Latin America with the idea that these subpoenas are to be used only for regulatory purposes. [See update below.] Were they concerned that people were trying to import cheap prescription drugs from Colombia? I don't think so.

With this background in mind it's interesting to read the testimony on “Internet Data Brokers and Pretexting: Who has Access to Your Private Records” by Ava Cooper Davis, Deputy Assistant Administrator, Office of Special Intelligence, Drug Enforcement Administration, before the House Energy and Commerce Committee Subcommittee Investigations and Oversight on . The testimony was delivered during the summer of 2006. The testimony deals specifically with criminal investigations.
The DEA Agents Manual contains a specific section which details DEA’s policy regarding subscriber/toll information; use of telephone decoders; consensual monitoring; and nonconsensual monitoring. These policies have been developed and refined to ensure the information gathered during the course of an investigations is collected in a legal manner that will withstand court scrutiny and to establish adequate, appropriate oversight. The policies also protect the investigators and the agency from any legal liability.

The use of electronic surveillance in drug investigations, specifically telephone wire intercept operations, is an investigative technique which the DEA uses to decimate drug trafficking organizations. By linking co-conspirators through their telephone conversations and physical surveillance, drug trafficking groups are more susceptible to prosecution than in undercover investigation which may yield only a small percentage of the organization. In order to justify the use of a telephone wiretap, a criminal investigator must be able to articulate his probable cause in an affidavit to the court. The success of this affidavit is dependent upon the field work that the Special Agent or TFO conducts, prior to seeking the courts approval for the collection of this information.

When targeting a telephone number for exploitation, investigative personnel must acquire telephone subscriber information and telephone toll records. The DEA Agents Manual requires the use of an administrative subpoena, grand jury subpoena, court order, or consent of the subscriber or customer to obtain telephone transactional records. Because the DEA conducts numerous telephone wiretap investigations, our personnel are very cognizant of how and from whom they collect telephone information. DEA has been granted administrative subpoena authority for use in drug investigations, and Special Agents and TFOs are trained to use that authority.

When a criminal investigator acquires a telephone number for which the subscriber information is not immediately known, the investigator must first identify the telephone company (e.g., Verizon, Sprint, AT&T, etc.) that owns or controls that number. Once the telephone company is identified, the investigator will obtain an administrative subpoena, requesting subscriber name, billing information, and telephone toll records for a specific time frame. The administrative subpoena must have a DEA case file number, be signed by the investigator’s supervisor, and be given a sequential number for recording in a log book or computer database so that a particular field office can track and account for any administrative subpoenas issued by that office. The telephone companies are given a period of ten days, from the date of issuance, to respond with the requested information. Furthermore, each subpoena usually has an attached letter, signed by the office head, requesting the telephone company not to disclose the existence of the subpoena for a period of 90 days; as such disclosure could possibly interfere with an ongoing criminal investigation. The investigator also has the option of seeking a court order to mandate that the telephone company comply with the non-disclosure request.

The DEA Agents Manual does not specifically address IDBs or their use in criminal investigations. Rather, DEA policy specifically enumerates the authorized methods for DEA personnel to obtain telephone subscriber or transactional records which are limited to administrative subpoenas, grand jury subpoenas, court orders, or consent of the subscriber or customer.The criminal investigator works directly with the custodian of the records and there is no question as to the authenticity of the data or how the company acquired the data.
Within the context of a discussion of criminal investigations she says that the DEA has the authority to issue administrative subpoenas and she says explicitly that criminal investigators use these subpoenas. This appears to me to be an admission that the DEA under Bush has breaking yet another law. She hints to the lawmakers that this is the case in the last paragraph, but she never explicitly says that it is against the law.[See update below.]

Why wasn't the fact that the DEA admitted to breaking the law big news back 2006? [Because they didn't break the law. See update below.] I guess people were to focused on the NSA scandal.

Back to the Clinton did it too defense. Did Clinton do it too? There is no evidence at the moment that he didn't, but the Times story gives a hint at what' may be going on.
The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.
The official doesn't say how the program was expanded, but my guess, based on the past blame Clinton moves on the right, is that it was expanded by Bush to included the use of administrative subpoenas in criminal investigations and that Clinton didn't break the law.[Need I say again, see update below.]

UPDATE: You've finally arrived.

I've continued look into the issue of administrative subpoenas with respect to the DEA and I've found that my interpretation of the law above is wrong. I told you I'm not a lawyer.

Originally, the DEA was given the power to issue these subpoenas only for regulatory purposes under the 21 U.S. C. 876, but their use has expanded over the years to include criminal investigations. The following is from a review of administrative subpoenas written by Charles Boyle for CRS.
Criminal Administrative Subpoenas — Controlled Substances Act.

The earliest of the three federal statutes (21 U.S.C. 876) used extensively for criminal investigative purposes appeared with little fanfare as part of the 1970 Controlled Substances Act, and empowers the Attorney General to issue subpoenas “in any investigation relating to his functions” under the act. In spite of its spacious language, the legislative history of section 876, emphasizes the value of the subpoena power for administrative purposes — its utility in assigning and reassigning substances to the act’s various schedules and in regulating the activities of physicians, pharmacists, and the pharmaceutical industry — rather than as a criminal law enforcement tool. Nevertheless, the Attorney General has delegated the authority to issue subpoenas under section 876 to both administrative and criminal law enforcement personnel, and the courts have approved its use in inquiries conducted exclusively for purposes of criminal investigation. Section 876 authorizes both testimonial subpoenas and subpoenas duces tecum. It provides for judicial enforcement; failure to comply with the court’s order to obey the subpoena is punishable as contempt of court; it contains no explicit prohibition on disclosure.
The first thing which this means is that the testimony of Ava Cooper Davis was not an admission of breaking the law by the DEA.

Where is the the miss deed in all of this if the DEA can issue these subpoenas in criminal cases? That isn't clear from the reporting. The USAToday story didn't mention administrative subpeonas. It stated that the NSA was sharing its domestic spying database with the DEA. There the crime is the unauthorized domestic spying by the NSA and the fact that DEA was using these ill gotten fruits.

The New York Times article tells a somewhat different story.
In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions.
This suggests that the DEA isn't piggybacking, or at least isn't only piggybacking, on the NSA domestic spying program, but rather it is running its own operation with some help from the NSA. But, there is really not enough information to judge what's going on.

It could be that the DEA presents an administrative subpoena to a telecom requesting the records of all customers making calls to Latin America and then, in turn, has the NSA collect and analyze the data? I think that's a plausible reading of this. If this is how it works does the DEA's authority to issue these subpoenas trump the NSA's prohibition against domestic spying? The other question concerns the vacuum cleaner nature of the operation. Can the DEA lawfully use an administrative subpoena not for an individuals records, but for a whole class of people?

When it comes to the Clinton did it too defense, it is hard to tell what it is that Clinton also did since we can quite figure out what Bush did. But my guess is that Clinton may have been using the administrative subpoenas to look at the records of particular individual that made calls to Latin America, which is legal, and that Bush expanded it to a vacuum cleaner operation.

The bottom line is that there is no reason at this point to accept the assertion that Clinton did it too. It appears to be so much propaganda designed to grease the skids for this weeks immunity vote and it's likely to go away once it has done its job.

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