The FBI's Investigation of Clinton's Emails

I have a new piece up at CNN entitled "FBI Demolishes Hillary Clinton's Email Defense" discussing FBI Director James Comey's statement yesterday on the FBI investigation into Clinton's emails.  It begins:

While headlines about FBI Director James Comey's unprecedented announcement Tuesday largely focus on the agency recommending no charges against Hillary Clinton, the director's statement was a stinging public indictment of Clinton, her aides, and even her attorneys. While many had already concluded that charges were unlikely, the FBI investigation revealed new facts that illustrate that the possibility of criminal charges was closer than the public knew.

Are Senator Burr's Torture Report Demands Illegal?

Sen. Burr's remarkable Jan. 14, 2015 letter to the President demands that copies of the final SSCI report already distributed throughout the Executive Branch "should not be entered into any Executive Branch system of records" and that all copies in the possession of federal agencies should "immediately" be transferred to the SSCI.  At best, these demands are based on a simplistic interpretation of the law.  At worst, they constitute a demand by a Senator that federal employees unlawfully remove records from agency custody.

Thus far the analysis has focused on Sen. Burr's transparent motivation to help CIA's tenuous litigation position that the copies are not "agency records" under FOIA case law.  Sen. Burr's ham-handed demands, however, simultaneously ignore agency legal obligations to preserve, manage, and maintain agency "records" - as separately defined under the federal record keeping laws.  That is, even if Sen. Burr and CIA were successful in confusing Judge Boasberg enough to hold that agency copies of the SSCI report are not "agency records" under FOIA, it doesn't necessarily mean that the agencies can lawfully surrender them to the SSCI as Sen. Burr is demanding.

First, at least some of the agency copies of the SSCI report should already constitute agency "records" under the federal records laws, which are specifically designed to avoid unsophisticated gimmicks such as Sen. Burr's demand that the report "not be entered into any Executive Branch system of records." The broad definition  of a "record" includes "all recorded information . . . received by a Federal agency" that is "preserved or appropriate for preservation."  NARA regulations define "preserved" to include "storing" and can expressly cover materials not actually in a filing system.  "Appropriate for preservation" also includes material that "should be filed . . . even if the materials are not covered by its current filing or maintenance procedures."

Second, under the federal records laws, each and every copy (or partial copy) whether hardcopy or digital within the Executive Branch could potentially be analyzed separately as a record. See, e.g., 36 C.F.R. § 1222.12 ("Record status of copies . . . Multiple copies of the same document and documents containing duplicative information may each have record status").

Third, to the extent that there is uncertainty about whether copies already in agency custody are records under the federal records laws, neither Sen. Burr nor the Senate Parliamentarian nor Judge Boasberg in the FOIA case nor even the President is the final arbiter. Last November, Congress expressly granted binding legal authority to determine whether something is a record to the Archivist of the United States, who perhaps should get his boots on.

Finally, if the copies of the SSCI report are records under the federal records laws, they may not be removed from agency custody, alienated, destroyed, etc. without authority from the Archivist. Doing so without proper authority violates the law and, under some circumstances, can even constitute a criminal act.

In the end, this will hopefully be moot at least as to the SSCI report.  It is difficult to imagine Judge Boasberg won't see through Sen. Burr's/CIA's attempted ruse and he ought to be more offended than persuaded.  But in the bigger picture, the situation provides yet more evidence that CIA simply cannot be trusted with its own records. See also here, here, here, here.

Haditha Massacre: After 9 Years Still Unanswered Questions About Destroyed Documents

Based on documents recently obtained via FOIA, there are still two open inquiries by the National Archives and Records Administration (NARA) into the possible unlawful destruction or removal of records related to the killings of 24 Iraqis in Haditha in November 2005 - 9 years ago this month. Despite a letter from the Marine Corps in mid-2013 that purported to finally respond to the inquiries -- which, as I'll explain below, is completely inadequate -- NARA has not closed out the inquiries, nor should it.

The first unauthorized destruction inquiry began in August 2006 following a New York Times article entitled "Marines May Have Excised Evidence on 24 Iraqi Deaths" which stated that an investigation by Maj. Gen Eldon Bargewell had uncovered, among other things, possible tampering with a unit log book "which was meant to be a daily record of major incidents the marines' company encountered" but which "had all the pages missing for Nov. 19, the day of the killings, and that those portions had not been found."  The initial NARA inquiry letter is here.  (As an aside, the fact that NARA had to learn about this from a news article is arguably itself evidence that the Department of the Navy/Marine Corps "did not follow the law").

The second inquiry began in December 2011 (NARA letter here) following another stunning New York Times article entitled "Junkyard Gives Up Secret Accounts of Massacre in Iraq" that was based on 400 pages of classified interviews related to an investigation of the Haditha killings found in an Iraqi junkyard where they were being burned by local Iraqis.

In both cases the Department of the Navy initially responded to NARA by stating that a substantive response would have to yield to ongoing Naval Criminal Investigative Service (NCIS) investigations (2006 letter and 2011 letter).  Yet released emails (see, e.g., here) also show that it was thereafter left to NARA to attempt repeatedly to follow up on its inquiries.   The Navy and Marine Corps appeared both disorganized and dismissive of the NARA inquiries.  In one 2012 email, for example, the Navy asked an inquiring NARA representative, "Who is lighting the fire on you at NARA?"

Finally, last year a May 30, 2013 memorandum from the Commandant of the Marine Corps (signed by the Director of Marine Corp Staff) purported to address, at last, both NARA inquiries. The memo simply stated, however, that "regarding alleged destruction of records, a thorough and extensive review of available documentation and previous investigations was conducted.  As a result of this review, there were no findings which revealed destruction or unauthorized removal of records" (emphasis mine).

A superficial reading of this carefully-worded paragraph might give the impression that the Navy/Marine Corps actually investigated the questions posed by NARA.  Instead, it appears -- as the letter in fact states -- that they simply reviewed the "documentation and previous investigations" into the Haditha matter generally and there were "no [formal] findings" of "destruction or unauthorized removal of records."  This is supported by an email exchange that preceded the formal response in which NARA tried to clarify whether the Navy had actually completed an "investigation into the alleged destruction of Haditha records" and the Navy representative responded that it was the "investigation into Haditha in general."  This is wholly inadequate for several reasons.

First, the lack of a specific relevant "finding" in one of the various criminal investigations about the Haditha killings is irrelevant unless one of them was tasked specifically with looking at, and reporting back on, whether there was an unauthorized destruction or removal of federal records, regardless of whether it justified criminal charges.

Second, to the extent the records of those investigations are public, they do appear on their face to show records destruction.  The 2006 New York Times article, for example, indicated that the destruction of evidence related to the log book arose in the context of the investigation by Gen. Bargewell.  The text of the resulting report was later made public here and it does include sections indicating possible destruction of records relating to a log book, including this one:

A more detailed accounting of these facts would be available in the interviews to which the footnotes above cite as well as other materials cited in the report, but they are not publicly available (so far as I am aware).  Additional evidence on this point also comes in the form of a subsequent Article 32 hearing in 2007 for CPT Randy Stone, in which 1SG Albert Espinosa testified that the "log books from Nov. 19 were incomplete or missing." In the case of the 2011 NARA inquiry, the factual predicate is even more easily verified: the New York Times has copies of classified federal records they obtained from an Iraqi junkyard!

To be clear, it would be possible for the Navy/Marine Corps to have investigated these claims specifically and to have concluded that there was insufficient factual support to conclude that pages in the log book were destroyed at all or to conclude that the destruction of the records in the Iraqi junkyard -- while undertaken in an incompetent manner that created a serious security incident -- was not unauthorized records destruction because they were disposable reference copies or otherwise covered by an approved records schedule.  But there is no indication that this is what occurred, despite years of delay.

The larger point is that in cases such as this, where publicly available evidence clearly supports at least a prima facie case of unauthorized destruction, NARA ought to require agencies to explain what investigative steps were undertaken and describe its analysis in determining whether or not the destruction was unauthorized, rather than an inexplicable, conclusory response of "no unauthorized destruction."  Part of the value of these NARA inquiries is to identify agency misinterpretations and misapplications of the federal records laws in order to remedy them to prevent more widespread destruction.

To NARA's credit, despite the May 2013 letter from the Marine Corps, NARA continued to list both inquiries as still open as of the end of fiscal year 2013 and, based on the results of recent FOIA requests, nothing has changed.

Finally, while the significance of these NARA inquiries extends far beyond the question of missing pages in a unit log book or some binders in a junkyard (as mentioned above), those missing pages are more than important enough.  If the IRS undertook Herculean efforts (see pp. 5-7 in the attachment) to try to resurrect probably meaningless emails of Lois Lerner, surely we can expect the United States Marine Corps to provide a meaningful response to NARA regarding records relevant to a horrific event in which 24 human beings were killed and for which Marines were charged with crimes.  Even though the criminal investigations may be finished, for the historical accounting for Haditha - which is already mentioned in the same breath as My Lai - every record counts.

CIA Cannot Be Trusted to Destroy "Non-Senior Email"

On September 17, 2014, the National Archives and Records Administration (NARA) published in the Federal Register a Notice of a new proposed records schedule (N1-263-14-1) from the Central Intelligence Agency (CIA) that would make certain "Non-Senior Email" temporary and ultimately disposable.

The "full" proposed schedule - which effectively is only one-page long - is here and NARA's appraisal of the proposed schedule here.  I have submitted a comment to NARA on the proposed schedule that argues that the Archivist of the United States should not approve this schedule.  The main thrust of my comment is (1) the proposed schedule is dangerously ambiguous, (2) it rests on suspect assumptions, and (3) CIA simply cannot be trusted with the extremely broad discretion to destroy records that this ambiguous schedule provides - for reasons I have previously documented here, here, here, here, here, here, and here.

The full text of my comment is posted here.

Earlier coverage of the proposed schedule by Steven Aftergood at Secrecy News is here.

Does the White House NSA Proposal Enable A Retention-Free Phone Plan?

While the details of President Obama's proposal to change the NSA's § 215 metadata program are still extremely limited, the proposal on its face appears to create an opportunity for an enterprising, aggressive telephone company to offer a retention-free phone plan - the "Snowden Plan" we'll call it.

How so?

The White House proposal purports to leave the telephone records at the telecoms only "for the length of time they currently do today."  As fleshed out by Charlie Savage, the Administration appears to intend to rely upon the FCC's 18-month "retention of telephone toll records" regulation at 47 CFR § 42.6.  Yes, remarkably, this is the same 18-month retention period that the Obama Administration has been actively pretending did not exist (see earlier post here) when it repeatedly and unambiguously asserted that government retention was necessary because the telephone companies "have no legal obligation" (really, watch that clip) to keep such records and only retain them for their own business purposes.

If the Administration now wants to change course and rely upon this same regulation, it should provide an incentive for at least one phone company to aggressively utilize the government's earlier attempts to undermine it, in order to create the most privacy-friendly phone plan allowed by law.

As I said, the Administration is now on the record, repeatedly, as asserting that --  absent the FISC orders -- only the business purposes of the telephone companies control retention. Verizon has argued today (h/t Emptywheel) that going forward companies should also not be required "to store data for longer than . . . they already do for business purposes."  There are legitimate "business purposes" for retaining phone data for at least some period, such as the need for records in resolving billing disputes with customers. However, post-Snowden a potentially more powerful business purpose would be to promote a popular phone plan that utilizes its own "minimization procedures" by limiting retention of such phone data to hours or minutes and finding alternative ways to serve other business needs.

What about the regulation?  Well, in complaining about the problems with the regulation years ago, the DOJ acknowledged plausible interpretations that could avoid the retention period. In particular, in 2006 the DOJ acknowledged the age of the regulation and its outdated usage of "toll records" noting that as telephone carriers have

increasingly moved away from classic billing models, in which charges are itemized and billed by type of service, to non-measured, bundled, and flat-rate service plans, some carriers have claimed that call records under such new plans are not covered by Section 42.6 because they are not "toll records." Therefore, these carriers have argued that no records need be retained.

The fact that the regulation did not substantively change following this could arguably be viewed as a "ratification" of such interpretations similar to that urged by the government in arguing that Congress knowingly "ratified" the Executive's secret interpretations of § 215.  Our enterprising telecom could explore these and other ways of avoiding the regulatory retention requirement that are both creative and legal.

I realize of course that this would not necessarily avoid other requirements under the proposal (for example, once a number is identified to the telecom it may have to produce "ongoing and prospective" records).  And the Administration can figure out a way either to shore up the regulation or buttress it with statute, but it seems to me that a telecom could create some good will by at least attempting to be aggressive in proposing such a plan to customers. Doing so could also have the ancillary benefit of helping to smoke out the real angles of the proposal that will undoubtedly require a lot more of telecoms than what is in their business interests and details that are surely already more thought out than the White House has disclosed.

Yes, the CIA Really Would Have Destroyed the Panetta Review

Sen. Feinstein asserted in her speech last week that the reason why the SSCI removed a copy of the internal Panetta Review from the CIA facility and took it to the Senate -- an action now subject to a DOJ criminal referral -- was the "need to preserve and protect the internal Panetta Review" (my emphasis).  Sure, Feinstein cited the CIA's destruction of the interrogation tapes years ago, but could the SSCI really have a reasonable, justifiable fear that CIA could destroy the Panetta Review? The answer is yes and here's why.

Red Flag: The "Draft" Panetta Review

Every CIA public assertion about the Panetta Review thus far raises a distinct red flag. "It wasn't a review, Senator, it was a summary," Brennan retorted to Udall.  It was never  a "formal study" said former Director Panetta. They were "drafts" "incomplete" and never circulated to the Director, asserted Panetta's former chief of staff. All these statements purporting to undermine the importance of these documents simultaneously suggest strongly that the CIA has also treated them as non-substantive drafts or -- in legal record-keeping jargon -- "working files," which the CIA would not have a long-term legal obligation to preserve.  

The SSCI's clever request for a "final version" of the Panetta Review points to the same issue.  There may be no final version, by design.  That is, CIA may have wanted them to remain "pre-decisional" drafts that would be exempted from disclosure and, ultimately, could be disposable.  Note the language in the redacted CIA emails Politico obtained, in which the CIA General Counsel's office was concerned at one point that the review was going "too fast" -- for a perpetual draft, you don't want to be too close to finished at the wrong time.  

Another possibility is that, in the CIA's view, the "final version" of the Panetta Review is, in fact, the "formal" response the CIA delivered last year to the SSCI report. After all, the intent of the Panetta Review, we are told, was simply to "catalog and analyze" the documents that were being provided to the SSCI and Brennan's letter (via Politico) states that the Panetta Review documents were "written in connection with the CIA's response to the oversight inquiry" (my emphasis).  In this scenario, the Panetta Review documents become part of the draft "working papers" of the formal CIA response.  Sure, they might seem to be contradictory to the final report, but, the CIA would say, that is simply part of the "pre-decisional" process, our final, official position is what is in our response to the SSCI.

Under both a CIA records schedule and a federal regulation, whether "working files" have to be preserved as records essentially comes down to the extent to which they (1) are circulated within the agency (see, e.g., "never circulated to the Director") and (2) contain unique substantive information (see, e.g., "it was just a summary").  The detailed standards are, to say the least, elastic and open to significant interpretation, and manipulation.

But does the CIA really manipulate such standards in order to destroy important documents? A few decades of examples . . .

In investigating CIA assassination operations, the Church Committee in the 1970s highlighted how its inquiry was hampered by CIA document destruction, noting in particular that the CIA had undertaken an "internal study of the Castro, Trujillo and Diem assassination allegations" but that "unfortunately, the working papers relating to that investigation were destroyed upon the completion of the Report" by order of the CIA Director (my emphasis).

Remember when the N.Y. Times revealed in the 1990s that the CIA had destroyed almost all of its documents on the CIA's role in the 1953 coup in Iran in the 1960s?  The CIA publicly expressed concern, but later quietly justified the destruction to NARA by asserting (p. 29) that the destroyed documents were, again, simply "working files." That is, those few documents that remained were the CIA's only "official" records on the coup.  NARA didn't accept that and found that it was unauthorized destruction. According to a former CIA historian, files on CIA operations in Guyana and Indonesia met the same fate, but again the CIA asserted that the destroyed documents were just "working files." The CIA nevertheless publicly stated that "strict procedures now insured that no valuable historical records" would be destroyed.

Later, however, NARA found more broadly in its 2000 evaluation of CIA record keeping that among the "serious shortcomings" within CIA was that it continued to "inappropriately" treat certain "files as non-record working papers or 'soft' files that could be destroyed at will." 

It was after all of this (and while the CIA was supposedly taking remedial measures to address NARA's critical findings) that the CIA determined that live videotapes depicting waterboarding were also not "records" that had to be preserved. My overly-long article on that is here, but the short version is that the CIA treated the tapes, again, as essentially working papers because -- as Feinstein repeated at the top of her speech -- the CIA incredibly asserted that that the written interrogation records made the tapes unnecessary, the equivalent of duplicative drafts, or, as the CIA told Senators in 2004, the tapes were just an "aide to the interrogations." (Incidentally, the DIA used the "working files" justification in destroying its interrogation tapes of Ali Saleh Khalah al-Marri, but at least later acknowledged it was improper to do so).

Of course, we still don't know the precise details of the CIA's legal argument for why the tapes did not require preservation, because the CIA has still not substantively responded to NARA's 2007 inquiry on the destruction (this 2010 letter was the last correspondence from CIA to NARA -- CIA must still be waiting on that "report" from Durham).  But you know who I'm pretty certain has all the details of the CIA's elaborate legal contortions to justify not preserving those tapes?  The SSCI. 

As the SSCI also knows, it was based on these arguments that two CIA attorneys told Jose Rodriguez just before the destruction (as the CIA Office of General Counsel had many times before) that there was no "legal impediment" to the destruction of the tapes.  One of those lawyers was Robert Eatinger who was also (until last week) the acting CIA General Counsel who Feinstein says is named 1,600 times in the SSCI report and who Feinstein accused of attempting to intimidate the SSCI by referring its staff to the DOJ for removing the Panetta Review.

In summary, the connection Feinstein drew between the need to preserve the Panetta Review and the destroyed CIA tapes was neither rhetorical nor abstract. The CIAs public assertions about the Panetta Review raise the distinct possibility that the CIA General Counsel's opinion on the status of these documents -- at least prior to finding out the SSCI had copies and the current Constitutional crisis -- sounded something like this: "The so-called 'Panetta Review' documents have never been anything other than drafts, the summaries themselves were never finalized into any formal report, they were never circulated to the Director, they do not represent an approved, authorized position or official record of the agency.  They are non-substantive working papers. Indeed, given they largely consist of summaries of other classified records they are essentially duplicates. In an abundance of caution, we will retain them while the SSCI completes its investigation, even though the documents fall outside the parameters of the SSCI's document requests and would be immune from an SSCI request in any event, given their privileged, pre-decisional nature.  After the SSCI report is finally complete, the disposition of these papers will be determined in accordance with our normal document retention procedures . . ." I would sincerely be happy to learn that this is inaccurate, but it is enough for the moment that the SSCI might also have reasonably believed the CIA would treat the Panetta Review in this way.

The SSCI's "Imminent" Need to Exfiltrate the Panetta Review

Okay, but even assuming the analysis above is correct, was there really an immediate "need" to "protect and preserve" the Panetta Review that justified the SSCI's removal of it from the CIA facility? Chris Donesa, formerly Chief Counsel for the HPSCI, raised this good point at Lawfare last week, noting that that while the CIA of course could have destroyed the Panetta Review, the CIA "certainly could not have gotten away with it given the Committee not only knew of the materials, but had already reviewed them on multiple occasions."

The answer is that the threat of destruction did not have to be immediate and most likely wasn't. The "imminent" need instead arises from the fact that the SSCI's access and control over its copy of the Panetta Review in the CIA facility was approaching an end because the SSCI was finalizing its report. And as the DOJ has educated us, in determining whether a threat is "imminent" the concept of "imminence must incorporate considerations of the relevant window of opportunity." The SSCI's time to act was rapidly disappearing.

Morever, the SSCI could have easily concluded that the CIA would never let the SSCI retain or remove the Panetta Review from the CIA facility under the normal procedures. The reasonableness of that conclusion has been graphically illustrated after-the-fact by the CIA's potentially unlawful and unconstitutional response to learning the SSCI had these documents.

Finally, the SSCI could have reasonably concluded that there were no other feasible options for securing the Panetta Review that would be likely to succeed. Over at Lawfare Chris Donesa also rightly noted that the SSCI "could have immediately given the materials protected legal status by issuing a subpoena for them." While this is true, the question is whether the SSCI could have reasonably expected it would win the resulting fight over that subpoena, which the CIA would have violently (and fast and furiously) opposed, likely with White House support. During that fight the documents would have remained at the CIA facility, and if the CIA had prevailed, they would have never left. The SSCI was not, and should not have been, willing to take that risk.

As both the SSCI and CIA understand, the significance of the SSCI report is about the long-term legacy of the CIA's detention and interrogation program. If the CIA were the only one with a copy of the Panetta Review, it would not have to destroy it immediately. The CIA would have nothing but time.  It could continue to push its narrative that the SSCI report -- and any SSCI characterizations of the Panetta Review -- are one-sided and inaccurate. The CIA could wait out the furor over the SSCI report and wait until even the most indefatigable FOIA requesters have exhausted their remedies, and then, years from now, the Panetta Review could be quietly and clinically euthanized in the CIA's records center.

In the end, the rubber really only hits the road on that morning -- which could be in 5, 25, or 50 years -- when the CIA's own records are opened to public scrutiny. The SSCI made the right calculation that if it did not act, the Panetta Review would not be in those boxes and the public would not be able to finally compare the CIA's public statements with its internal ones. The CIA would have successfully avoided authenticating the 6,300 page SSCI report as the definitive history of the program through its documentation illustrating that even the CIA itself -- in its honest, internal moments -- knew the SSCI Report to be accurate.  And the CIA would have gotten away with it, because on that day the missing Panetta Review would be a one-day story, in which the CIA spokesperson would recite the same talking points they have always used: the documents were just working files that were not subject to any active judicial or legislative inquiries and they were disposed of in accordance with approved records schedules.

Instead the Panetta Review is a "golden shield" for the SSCI Report that is safely preserved in a Senate vault. Even assuming the worst, that the DOJ determines that the removal of the Panetta Review from the CIA-leased facility was a criminal act by the SSCI, it will still be true that it was a necessary and heroic one.

CIA Legal Dissembling on Motion to Preserve Panetta Review

Just a quick post on a rather remarkable filing by the CIA in the context of a FOIA lawsuit filed by reporter, and tireless FOIA requester, Jason Leopold.  The filing is the CIA's Opposition to Leopold's Motion for a Preservation Order in a lawsuit over Leopold's FOIA request for the CIA's internal "Panetta Review."

Of particular note, the CIA boldly argues in its filing that the "destruction of the interrogation videotapes in 2005 is irrelevant" to whether there is a need for a preservation order in Leopold's case and, a few lines later, that the "conditions under which the interrogation videotapes were destroyed have no bearing on this case" (pp. 4-5). The government's support for these questionable assertions creates a new low for government litigation.

First, the CIA shamelessly cites to ACLU v. Dep't of Defense, 827 F. Supp. 2d 217, in which the court actually held that the CIA had violated FOIA and federal court orders in a FOIA case by destroying the responsive interrogation videotapes and in which the court stopped just short of holding the CIA in contempt for doing so.  The CIA nevertheless asserts that the ACLU case supports its opposition to a preservation order because in Leopold's case, unlike in the ACLU case, the CIA is not arguing that the Panetta Review falls under the CIA's "operational files exemption."  While it is good that the CIA is indicating that it does not plan on manipulating that specific exemption in Leopold's case in order to avoid its preservation obligations, the ACLU case will always stand for the broader proposition that the CIA is willing and able to manipulate FOIA in order to avoid an obligation to preserve relevant records. And as I have explained here, the CIA's manipulation of FOIA in the ACLU case was knowing and intentional.

Second, the other purported support is an even more shameless CIA citation to an unpublished 2008 decision in a GTMO case Abdah v. Bush (here).  In that decision, however, the court simply held that the destruction of the videotapes did not appear to violate the specific, and quite narrow, preservation order that had previously been entered in that specific case.  Indeed, if anything that opinion stands for the proposition that the preservation order the court entered in that case was not broad enough.  Let me explain quickly:

In 2004, Abdah, like Leopold, sought a preservation order and the government filed an opposition (here) that, like today's CIA filing, claimed a preservation order was unnecessary.  The government's filing, which was in January 2005 (ergo, 11 months before the tapes were destroyed), ridiculed Abdah's "conspiracy theory" that the government has a "propensity to destroy evidence" and that there was "no basis whatsoever for suspecting an impending campaign to destroy documents relating to Guantanamo." Moreover, the government claimed that it "strains credulity" that it would destroy any documents given the many pending government investigations into the "mistreatment of detainees"(and it also specifically cited the ACLU FOIA litigation!). Finally, the government declared that it was "well aware" of its broader "obligation not to destroy evidence that may be relevant in pending litigation." Despite the government's protestations, the court in Abdah nevertheless granted a preservation order (here), but it only covered "evidence and information regarding the torture, mistreatment, and abuse of detainees" at Guantanamo, not all evidence relevant to Abdah's case.

Therefore, the Abdah opinion the CIA purports to rely upon is simply the one in which the Court looks at its old preservation order and says the destroyed tapes are not covered by it. The court specifically does not reach the issue (because it was not raised in Abdah's motion) of whether the tapes violated the government's broader duty not to destroy relevant evidence.  If anything, that opinion would argue for plaintiffs like Leopold to request belt-and-suspenders protection through preservation orders when dealing with the government in national security cases and that courts should be more liberal in granting them.

Finally, the CIA's citation to the unpublished Abdah opinion is alarming for the separate reason that the CIA fails to bring to the court's attention the published opinion in Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) decided just a few weeks after Abdah, in which a court held that another GTMO detainee had made "a colorable showing that information obtained from Abu Zubaydah during 2002 likely included information" about him and that the destroyed tapes were "therefore subject to the preservation order" in that case, which was broader than in Abdah.  This contrary holding in a published opinion goes directly against the point the CIA is making in its motion in Leopold's case.  CIA cites Abdah for the fact that the judge in Abdah "declined to inquire further into whether the CIA had abided by its preservation requirements." Yet in Abdullah, which again the CIA does not cite, that is exactly what the court did.  Based on its finding of a violation of the preservation order in the destruction of the tapes, the court in Abdullah ordered that the government was required to file a report "detailing what they have done since the preservation order was entered . . . what they are now doing, to ensure compliance with . . . the preservation order, and the nature of any evidence potentially subject to the protective order that has been destroyed or otherwise spoliated."  The final kicker is that the government also filed this report in Abdah (here).

It is truly disturbing that this is the support the CIA would put forward in an attempt to distinguish the destruction of the CIA tapes and to support the proposition in its filing today that there is "no reason for the Court to believe that the CIA will not abide by its legal obligations to preserve responsive records."

Confirmed: The CIA Destroyed Its Noam Chomsky File and Thousands More on Other U.S. Citizens

I can now confirm that the reason why the CIA could not locate its file on Noam Chomsky, despite the fact that the CIA had in fact maintained records on him, is that the CIA destroyed them and, unfortunately in my view, the destruction was authorized by the Archivist of the United States.

As background, in an earlier post "More CIA Records on Noam Chomsky the CIA Could Not Find" I analyzed some additional CIA records (see, e.g.,  here from 1967, here, here, and here from 1970, and here from 1971) showing that the CIA was documenting the activities of Noam Chomsky as part of the CIA's CHAOS/MHCHAOS program. Importantly, those documents were located in the "Segregated Collection" of CIA records that were provided to the House Select Committee on Assassinations established in 1976 to investigate the assassinations of JFK and MLK, which are available in full-text search from the Mary Ferrell Foundation. 

My post was a follow-up to John Hudson's earlier piece in Foreign Policy called "Exclusive: After Multiple Denials, CIA Admits to Snooping on Noam Chomsky" that was based on a CIA document obtained via a FOIA request to the FBI by Kel McClanahan at National Security Counselors on behalf of Chomsky biographer Fredric Maxwell after the CIA had repeatedly denied possession any such records.

The new piece of the puzzle, just obtained via FOIA, is this CIA records control schedule, NC1-263-78-1, signed by then Archivist James B. Rhoads in March 1978 approving a "Request for immediate disposal" of thousands of CIA files on U.S. citizens "and the index related to these collections which were established under project CHAOS during the period 1967-1974."  The schedule notes that the "files were opened to maintain information bearing on possible foreign Communist exploitation of dissention in the United States, primarily concerning the Vietnam War. Subject of the folders were U.S. citizens and organizations involved in dissident activities in the United States."  

The schedule actually quantifies these files noting there were "8,328 folders on individual U.S. persons (citizens, resident aliens) and 2,196 volumes consisting of official and 'soft' subject files and so-called sensitive files (i.e., organizations/activities)." The CIA only requested immediate destruction of 7,840 of the files and was retaining the other 488, because it had deemed them to be of "continuing foreign intelligence or counter-intelligence interest." The schedule also excludes records that were, at the time, subject to FOIA or Privacy Act requests.

The schedule explains why the CIA denied having any such records and why the CIA records on Chomsky have been found in collections outside the CIA. Moreover, on its face, this approved records schedule made the destruction of the records consistent with the procedure outlined in the statutes collectively referred to as the Federal Records Act (although it is not conclusive as courts can, and have, found that even records schedules fail to comply with the federal records laws (see, e.g., American Friends Serv. Comm. v. Webster, 720 F.2d 29, 65-67 (D.C. Cir. 1983)). 

The bigger issue, as I suggested in my earlier post, is that the incomplete story of the CIA's creation, maintenance, and then destruction of its Noam Chomsky file highlights yet again a crucial question that needs attention and discussion in the ongoing debate over NSA surveillance files (previously discussed here).  Namely, the drive for "purging" surveillance data and "minimization" procedures purportedly designed to "protect privacy" needs to be balanced against the value of retaining government surveillance files (or some portion thereof) for long-term accountability purposes.  We now know that the CIA destroyed its file on Noam Chomsky based on a records schedule that cites the Privacy Act as justification, but that destruction also had the effect of creating, for years, the false impression that the CIA had never had such a file in the first place. There has to be a middle path that both protects privacy and also preserves accountability.

John Rizzo's Tape Destruction Revisionism

Former acting CIA General Counsel John Rizzo's new book "Company Man" makes the story of the creation and destruction of the interrogation tapes the main lead-in.  While the publisher's description states that the book "provides the most comprehensive account ever written of the 'torture tape' fiasco" Rizzo's account is demonstrably misleading, incomplete, and puzzling.  A few points:

First, Rizzo grossly misrepresents the findings of the CIA Office of Inspector General's (OIG) investigation relating to the tapes.  As you'll recall, the OIG found that the interrogators were waterboarding detainees in a manner very different than described in the DOJ OLC opinion on which the CIA purported to be relying. "The difference," the CIA OIG stated, was "in the manner in which the detainee's breathing was obstructed." In the DOJ opinion,

the subject's airflow is disrupted by the firm application of a damp cloth over the air passages: the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose.

One of the "psychologists/interrogators" even acknowledged the discrepancy to the OIG and "explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."

In Rizzo's retelling these crucial findings by the OIG are inexplicably converted into:

In its report on the interrogation program issued in May 2004, the Office of Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC's numbers on how many waterboarding sessions were conducted, did not find any unauthorized techniques were used on Zubayadah.

Second, Rizzo's book provides now-final confirmation that John McPherson was the CIA attorney who viewed the tapes in late December 2002 and who was interviewed about them by the OIG in 2003.  The full significance of this is explained in my earlier posts here and here, but in brief, McPherson is the secret, overlooked linchpin in the ACLU FOIA case.  After holding that the CIA had violated his orders by failing to identify the tapes as records of the OIG's investigation that were responsive to the ACLU's FOIA request, Judge Hellerstein nevertheless stayed his hand in holding the CIA in contempt based on the erroneous view that the "evidence suggests that the individuals responsible for processing and responding to plaintiffs' FOIA requests may not have been aware of the videotapes' existence before they were destroyed."  This is demonstrably inaccurate given that the individual who responded to the ACLU in relation to the OIG's files in April 2005 was none other than John McPherson, the person who knew more about the tapes than anyone else.  Rizzo further confirms that, in fact, McPherson "was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated."

Judge Hellerstein's information was incorrect based, in part, on statements made by the DOJ lawyer representing the CIA at oral argument, Peter Skinner, who represented that CIA FOIA personnel had mechanically searched the OIG files stating that, in the CIA's view, Hellerstein had meant:

You only have to search what has been produced to or collected by the OIG. And we said, Okay, we'll go back and we'll do what the Court's told us. And when we searched and reviewed documents collected by the OIG, when the FOIA personnel did that, they didn't have any videotapes because the videotapes weren't there.

Hellerstein responded:

THE COURT: If your client was aware that that representation to me masked information that was important to the OIG, it was not put into the OIG files, I hesitate to state the inference I would take from that, Mr. Skinner.

MR. SKINNER: Your Honor, I certainly don't --

THE COURT: It seems to me that you were gulled and the Court was gulled.

Rizzo's book provides the final proof: Judge Hellerstein, you were gulled by the CIA.

Finally, more broadly, Rizzo's book attempts to make the tapes simply a story about Jose Rodriguez insubordinately going behind his back to destroy them, but fails to acknowledge that the destruction would not have occurred but for the troubling and incorrect legal interpretations of Rizzo (and his subordinates) which repeatedly advised Rodriguez (including just before Rodriguez ordered the destruction) that there was no legal obligation to retain the tapes.  Rizzo fails to mention that his faulty legal interpretations that the tapes were not "records" and that they were not legally required to be retained as relevant to ongoing or foreseeable litigation have been rejected by every court that has considered them on the merits. See, e.g., Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) (finding that a GTMO detainee made a "sufficient showing" that the tapes were subject to a 2005 preservation order); ACLU v. DOD, 04-cv-4151 (D.D.C. Oct. 5, 2011) (holding that the tapes were records subject to the ACLU's FOIA requests).  Indeed the National Archives inquiry into whether the destruction was an unauthorized destruction of federal records is still not closed.

To the extent Rizzo mentions the legal status of the tapes at all, his account is conflicted and inconsistent.  When he first hears about the tapes (which he states was not until October 2002), he recognized that destroying them "was fraught with enormous risk" as any "minimally competent attorney" would. He also acknowledges "the certainty" that the program and the tapes "would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come" and yet nowhere does Rizzo explain how or why he came to the conclusion that there was nevertheless no legal obligation to retain the tapes and that "the question" was instead "not whether to destroy the tapes, but when."

The closest Rizzo comes is when - to his credit - Rizzo admits that the CIA avoided telling the 9/11 Commission about the tapes by "parsing literally every word in each of the commission's requests" which he acknowledges was a "mistake."

More CIA Records on Noam Chomsky the CIA Could Not Find

It turns out that there are even more CIA records on Noam Chomsky including memoranda indicating that the CIA was documenting Chomsky's activities specifically as part of the CIA's  CHAOS/MHCHAOS espionage program. Take a look, for example, at this:

You'll recall a couple of months ago John Hudson at Foreign Policy reported that the CIA was forced to admit that it had kept at least one record on Noam Chomsky, "Exclusive: After Multiple Denials, CIA Admits to Snooping on Noam Chomsky" which was based on this single CIA document recently obtained via a FOIA request by Kel McClanahan at National Security Counselors to the FBI on behalf of Chomsky biographer Fredric Maxwell, after the CIA had repeatedly denied possessing any such records.

Additional CIA records on Chomsky can be found in a collection of documents the CIA provided to the House Select Committee on Assassinations (HSCA) which was established in 1976 to investigate the assassinations of JFK and MLK. The collection is known as the "Segregated Collection" of CIA documents provided to the HSCA and its contents began to be cleared in the 1990s following the JFK Assassination Records Collection Act of 1992.  The awesome Mary Ferrell Foundation has a database consisting of these records that is full-text searchable and in which is found a number of CIA records further evidencing CIA documentation on Chomsky:

(1) The first record is a CIA list from October 1967 listing Chomsky (twice, one crossed out) in an alphabetical list.

What does this list refer to?

According to the Church Committee report on the CHAOS program (p. 691), the CIA "intensified" its inquiry into "American dissidents" specifically in October 1967 contemporaneous with the October 1967 peace demonstrations at the Pentagon and in connection with the CIA producing a study on "International Connections of the U.S. Peace Groups" in November 1967.  The list appears to document a CIA search for information about the named individuals.  Note at the top it states in type and handwriting "NPII in RID But Listed By [CIS] in VN Protest [Run]"

My working theory is that this means the CIA was running the names against its records.  For Chomsky and the others on this list the result was "NPII in RID" which likely means they found NPII "No Pertinent Indentifiable Information" in the "RID" system (as in the "RID" name check in this unrelated CIA record).  But according to the handwritten note Chomsky and others may have been found in records of "CIS" [either CIA Counterintelligence Staff or CIA Current Interest Staff?] relating to Vietnam Protests.  This record could then potentially mark the beginning of CIA CHAOS/MHCHAOS documentation of Chomsky.

(2) The second record is the one pictured at the beginning of this post, a CIA memorandum dated July 1, 1970 requesting information on "contacts/activities in Hanoi of visitors of MHCHAOS interest" and including Noam Chomsky in a "list of known such visitors."  This record was made about a month after the record released via FOIA to the National Security Counselors (that noted Chomsky's "endorsement" of others traveling to North Vietnam). Note also the cryptonym notation "RYBAT" used with MHCHAOS.  RYBAT according to this helpful index, also from the Mary Ferrell Foundation, apparently indicated "extreme sensitivity."  In a different copy of this same document, ironically cleared by the CIA a year later, all the names, including Chomsky's, are redacted.

(3) The third record is a CIA report dated December 15, 1970 listing Noam Chomsky among "foreign invitees" to a "National Anti-War Conference" scheduled for Sydney, Australia in February 1971.




This document also is also marked with RYBAT and MHCHAOS.









an earlier version redacted these notations:

(4) The fourth record is a CIA memorandum dated Dec. 29, 1970 again listing Chomsky as a "foreign invitee" to the Anti-War Conference in Sydney.  In relation to Chomsky, it also references an additional May 1970 CIA Memorandum.

(5) The fifth record is a CIA memorandum dated April 7, 1971 to the FBI listing Chomsky as having traveled to North Vietnam in April 1970 based on a search of "computerized and other files of the [Central Intelligence] Agency" and providing dates of Chomsky's travel in Laos and North Vietnam. This record illustrates that Chomsky's name and information were, at least at that time, in a retrievable file within CIA.

So what does all this mean?  A couple of quick points.

Obviously these additional references found in a random collection of documents the CIA provided to the HSCA further confirm that the CIA did maintain records on Chomsky.  They also expressly confirm in at least one case (see (4) above) that the CIA had/has at least one more such document and they strongly suggest that the CIA likely had/have many more records on Chomsky.

This leads to one of two conclusions.  Either:

(A) the CIA still has all of these records (and perhaps many more), but its search in response to the FOIA requests did not locate them.  While I guess it is possible some could be in exempt operational files, the publicly available documents raise questions about the CIA's organization of, and its ability to retrieve, its older records (the CIA has repeatedly resisted transferring its records to the custody of the National Archives within the reasonable time periods that other agencies do);

And/Or

(B) as suggested in John Hudson's Foreign Policy piece piece, the CIA destroyed all of their copies of these records. On this possibility note that this would not necessarily have been easy given that some of these documents indicate that copies were filed in multiple places:

















If they were destroyed, it does raise questions about compliance with the Federal Records Act (as the Hudson piece notes), although such questions about the CIA would not be novel (see, e.g., the 1953 Coup in Iran, the CIA tapes, etc.).  In the case of the Chomsky documents and some other CHAOS records about U.S. persons, there could be an additional explanation: they could have been "purged" to "protect privacy." In a section on CHAOS entitled "Maintenance of Files on Americans" (at p. 717), the Church Committee noted, for example, (emphasis mine),

To the extent that information related to domestic activity, its maintenance by the CIA, although perhaps not itself the performance of an internal security function, is a step towards the dangers of a domestic secret police against which the prohibition of the [CIA] charter sought to guard. Specific standards are required for the retention of such material when its direct availability in the CIA's own files is necessary for legitimate foreign intelligence purposes and the Agency has acquired it propertly. In addition, the CIA can be required to purge existing files in conformity with the new standards, and where appropriate, to purge name indexes as well.

This raises again the issue I previously discussed in relation to retention of surveillance information by the NSA.  The drive to prevent retention of, or purge, U.S. person data collected by intelligence agencies in order to "protect privacy" is in some tension with the value of retaining it for accountability purposes.  The Chomsky file is a good illustration. CIA may have purged its materials on Chomsky in compliance with guidelines theoretically designed to protect his privacy, but such an action has the negative effect of creating the impression -- now demonstrably false -- that the CIA never had any.

More Misleading Information from ODNI on NSA Telephone Metadata Collection

In its ongoing publicity offensive, the administration has put forward more detailed public arguments to justify the NSA obtaining and storing vast quantities of telephone metadata of U.S. persons in purported reliance on § 215, the "business records" provision, of the Patriot Act. A central pillar of the NSA/DOJ/ODNI argument is that government storage of this metadata is necessary because the telecommunications companies otherwise would not retain it. This argument is, at best, disingenuous and misleading.

In one of the most detailed defenses of the telephone metadata program, for example, ODNI General Counsel Robert Litt asserted last week in a prepared speech (see text or video clip) that "telephone companies have no legal obligation to keep this kind of information" ("information" he defines as "the number calling, the number being called, and the date, time and duration of the call") and that telephone companies destroy this data "after a period of time determined solely by their own business purposes" (emphasis added).  This is demonstrably inaccurate.  See, for example, the "legal obligation" found at 47 C.F.R. § 42.6, a regulation which requires that telephone companies:

retain for a period of 18 months such records as are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone number called, date, time and length of the call.  

Not only does this federal regulation provide a legal retention obligation, but it is also unrelated to the "business purposes" of the telephone companies and in fact was promulgated by the FCC at the specific request of the DOJ in order to aid in terrorism investigations.  The retention period had previously been six months, but the DOJ petitioned the FCC to extend it precisely because such telephone records "are often essential to the successful investigation and prosecution of today's sophisticated criminal conspiracies relating, for example, to terrorism . . . and espionage." The FCC therefore extended the legal retention period for as long as the DOJ said was necessary.

DOJ/NSA/ODNI may believe that this regulation, which became effective in 1986, is outdated or no longer adequate, but pretending that it (and many similar state regulations) doesn't exist or that those agencies couldn't have done more to update or expand this regulation to suit the Executive branch's current "needs" undermines their argument.

In fact, in early 2006, the FCC itself proactively solicited comments on the 18-month retention regulation and the DOJ submitted these comments which -- in light of what we know now and the government's current arguments -- is rather remarkable.

First, the DOJ's comments are dated April 28, 2006, which was reportedly just a month before the DOJ/FBI secured the first Foreign Intelligence Surveillance Court order for bulk collection of U.S. telephone metadata for the NSA under the "business records" provision.

Second, while the DOJ noted problems with the regulation (including that "some" phone companies read it narrowly and argued it would not apply if certain billing methods were used) the DOJ nevertheless stressed the regulation's continuing importance for counterterrorism, stating that telephone records were a "critical tool in the fight against global terrorism" that had "enabled . . . national security agencies to prevent terrorist acts and acts of espionage." Moreover, the DOJ stressed its role in setting the legal retention period at 18 months.

Third, the DOJ in fact suggested -- in a footnote, near the end -- that the FCC "should explore" whether "the existing 18-month rule should be extended," yet surprisingly the DOJ did not forcefully argue for such an extension.  You can decide for yourself, but the DOJ's comments don't read to me like they were written by the same DOJ that was simultaneously arguing to a secret court that the need to retain the telephone data longer than 18 months was so crucial and exigent that it necessitated the extraordinary remedy of ordering telecommunications companies to provide all telephone metadata in the United States to the NSA in reliance on a breathtakingly broad reading of "relevant" in a statutory text.

And of course, members of Congress have questioned whether the extended retention is really as important as the NSA claims, as Senators Udall and Wyden have stated, "the NSA still has not provided us with any examples of instances where it relied on its bulk collection authority to review records that the relevant phone company no longer possessed."

Lastly, the FCC's regulatory power over such records highlights sharply conflicting views within the government about the nature and value of such data that have been largely ignored.  DOJ/NSA/ODNI have gone to great lengths to downplay the importance of "telephony metadata" -- "it's just metadata, it's not content, it's like the information on the front of an envelope, it's not Constitutionally protected, there's no expectation of privacy," they say. Yet, Congress and the FCC have been working for years to protect the "confidentiality" of such information under the name "Customer Proprietary Network Information" (CPNI). The statutory definition is at 47 U.S.C. § 222(h), but in the plain language of the FCC: "Practically speaking, CPNI includes information such as the phone numbers called by a consumer; the frequency, duration, and timing of such calls; and any services purchased by the consumer, such as call waiting. CPNI therefore includes some highly-sensitive personal information" (emphasis added).

The issue of bulk telephone metadata collection is undoubtedly complex and difficult to simplify, but the DOJ/NSA/ODNI efforts to "explain" and justify the program and to lay out the "facts" (which repeatedly seem to be half-truths) is not creating trust, it's undermining it.

Criminal Document Disclosures & Foreign Asylum: Is Edward Snowden Christoph Meili?

As the saga of whether Edward Snowden will accept an offer of asylum in Latin America continues, his situation allows some comparison to the fascinating story of Michel Christopher Meili.

Who's Meili?

Is there an EFF sticker on that volume?
Photo by Gisela Blau

In brief, Meili was a 29-year old Swiss citizen and an employee of a private company with significant connections to his government - the Union Bank of Switzerland. In 1997 Meili was a security guard, who happened upon 2 carts full of Holocaust-era banking documents related to Jewish clients of UBS that were slated for destruction. Inspired by "Schindler's List," Meili removed several volumes of the documents from his employer's possession. Instead of going directly to the authorities, he instead disclosed the documents to outside sources.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law.  Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Meili testified

One of the things that I have learned in these last few months is that there are certain powers in Switzerland that do not want to see the Swiss Banks and our government exposed for what they did during the Holocaust and that they will do anything - including destroying documents, restricting and controlling Police investigations, hiding/burying evidence and lying publicly.

The reason why Meili gave testimony to the U.S. Congress was that while he was temporarily in the United States, Sen. Alfonse D'Amato organized a Senate hearing about, and including, Meili.  D'Amato expressly acknowledged that Meili "today is under investigation for violating Swiss bank secrecy laws for disclosing the records" and that he had also received threats against him in Switzerland by individuals opposed to his actions (no doubt in the same vein as disturbing statements about what should happen to Snowden in the comments section of many articles about him).

The Senate hearing was designed to assess what actions the United States could take to protect Meili.  Congress determined that although Meili did "not meet the necessary criteria for permanent residency under any existing categories" under U.S. law, that Meili nevertheless deserved sanctuary in the United States.  Therefore Congress passed a special law, Private Law 105-1 that granted Meili, his wife, and his children permanent residency in the United States "[n]otwithstanding any other provision of law."

The law specifically cites the fact that Meili was "interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions."  President Clinton signed the law on July 29, 1997.  According to a spokesperson, President Clinton, after reviewing the case, decided that it was "appropriate" that Meili be given permanent residence in the United States.

The actions of the United States in the Meili affair could therefore provide a model for Venezuela, Nicaragua, or Bolivia in granting Snowden asylum. On the issue of whether Snowden would technically qualify as a refugee under international law, for example, see "Snowden's asylum case" by Jaya Ramji-Nogales here. Regardless of the merits of Snowden's case under current international or domestic law, however, one of those countries that have offered him asylum could simply follow the U.S. example and make Snowden's asylum a special case.

As to the more substantive similarities between the actions of Snowden and Meili, to be absolutely clear, I am not drawing any comparison between the NSA surveillance programs and the Holocaust.  I am comparing, however, the decision to grant "asylum" in some form to a foreign citizen who was under active investigation for violating the laws of his country and violated his obligations to his employer in order (1) to disclose ongoing NSA surveillance programs versus (2) to disclose historical banking records that may have been relevant to individual ownership claims for property plundered by the Nazis a half a century earlier. That comparison can cut in many different ways depending upon one's perspective (e.g., how one weighs the severity of the crime v. the importance of the disclosure) and the two cases are distinguishable in many ways (e.g., despite the investigation, Switzerland had not cancelled Meili's passport or sought extradition).

The point is that comparing Snowden with Meili is another illustration that the Snowden affair is clearly not as simple as upholding the "rule of law" as President Obama asserted.  The most striking example of the contrast is in the statements of Sen. Charles Grassley who has stated about Snowden that "I believe that whatever the law requires, just like anybody that breaks the law, [Snowden] needs to be prosecuted" and that "I suppose it gets down to - did he break a law? - I think it's pretty obvious he did."  The very same Sen. Grassley, during the 1997 Senate hearing on Christoph Meili, gave this rather remarkable statement which deserves reprinting:

The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.

We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.

*   *   *   * 

Well there is a lesson to all of us in the Congress of the United States when we have an example like this before us that we should not be denegrating people who seek the truth. We should be helping them be protected, we should help them get their story out, and we should help them make sure that they are not harmed economically or physically, or even professionally, because of seeking the truth.

Now, I know in some instances not every whistleblower has a credible story, so you do have to be circumspect to the extent to which we investigate every complaint that comes to our attention. But it seems to me that we ought to be honoring people who seek the truth, as Mr. Meili has sought the truth, and to expose wrongdoing. That is my interest in this. Besides helping Mr. Meili, it is my interest in also making sure that we are very consistent in the Congress of the United States in encouraging whistleblowers to come forth with information when something is wrong, because we do not have the time in the Congress to know where every skeleton is buried in every closet.

Is the NSA Destroying Records Related to its Collection of Phone Data?

By now everyone will have seen Glenn Greenwald's piece "NSA collecting phone records of millions of Verizon customers daily", the "purported" Foreign Intelligence Surveillance Act court order on which the article is based, and the Obama Administration's talking points in response.

After the shock over the FISA order subsides, the big question becomes: "What has the NSA been doing with this data and any other material it may be obtaining?"

The troubling fact is that the NSA is very likely not retaining all of the information necessary to verify the answers it will give to such questions.  Where's my evidence?

NSA records schedule N1-457-08-001, approved in 2009, governs the fate of "SIGINT Operational Data" such as "intercepted communications" including "voice, data or video and related records" as well as "SIGINT Operational Analysis Information and Records" and other relevant records. I've posted it here (it is also available on the National Archives website here, although intelligence-related schedules posted there have been known to suddenly become "temporarily unavailable").

What does the NSA SIGINT records schedule say?

First, all the "Operational Data" (Item 1) itself is considered "temporary" and the NSA is empowered to destroy such records as soon as it is no longer of "intelligence interest or potentially useful" in NSA's "analytic research."  Making the retention of this data subject only to NSA's interests and uses is remarkable in that it completely ignores the value of these records in providing, among other things, accountability and evidence of the extent of NSA operations.  How this is consistent with, for example, the federal records laws, which require that agencies preserve records "necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities" is less than clear. 44 U.S.C. § 3101 (emphasis added).  Some of this concern is perhaps alleviated by the breadth of the FISA order given that it provides independent evidence that can confirm whether the NSA collected data of a given person (if you were using a relevant Verizon system during a relevant time period, the answer appears to be yes), but such data (and other collected material we may know nothing about) unquestionably has significant value beyond this.

Similarly, "SIGINT Collection Methods" (Item 5) which includes records relating to "the acquisition, processing, analysis, reporting" of "intercepted target communications" and "SIGINT Tasking/Targeting Analysis" (Item 7) which includes "information/data that document the exchange of SIGINT material" and "documentation reflecting the acquisition, receipt, source control, distribution/location" of "SIGINT material" are also considered "temporary" records subject to destruction after 5 years.  This means that decades from now, when historians are finally granted access to freshly declassified NSA records in order to study these events, any records the NSA places in these rather vague and pliable categories will no longer exist.  Even if a Congressional committee were to begin a new investigation today, records in such categories could already be gone prior to a moving 5-year wall of destruction that currently sits somewhere around 2008.

Second, the NSA records schedule provides that several other categories of SIGINT records are "permanent" including "SIGINT Product," which are serialized intelligence reports (Item 2) and "SIGINT Operational Analysis Information and Records" (Item 3), which includes "tasking messages," "dossiers, listings," and "evaluation plans." However, the retention of these "permanent" records are also, like the "temporary" ones above, subject to a significant "EXCEPTION" which notes:

Any data that contains, or could contain, U.S. person information has legal ramifications. There are strict timelines for retention of this data and it must be handled in accordance with USSID SP0018, including Annex A, Appendix 1 [try here]; DoD 5240.1-R [try here]; and any special minimization procedures that govern the retention of that data. For data collected pursuant to the Foreign Intelligence Surveillance Act (FISA) or Protect America Act (PAA), retention may only be done in accordance with the minimization procedures for that data.

Thus even though the value of these records was appraised to be important enough to require permanent retention (as in, you can never destroy it), the most Constitutionally-significant records among them involving "U.S. person information" will nevertheless be destroyed based on limited retention periods.

This highlights a fascinating, distressing conflict between the goal of protecting the privacy rights of individuals by using "minimization procedures" that limit how long the NSA can retain U.S. person data, on the one hand, and the value of protecting our privacy rights by preserving such records to document the extent of NSA domestic operations and to provide long-term accountability (even if just historical accountability), on the other.  Minimization procedures have existed for years and have been blessed by the FISA court and apparently the National Archives. In my view, however, the idea that the NSA could surreptitiously collect, analyze, and utilize data about my communications and then erase its footprints by destroying the records of having done so in the name of protecting my rights seems like a poor form of protection.  The destruction of such documentation could remove the evidence necessary to verify the breadth of NSA collection and how they actually used the data and thereby makes NSA assurances that either data was never collected or was never used for nefarious purposes ultimately a matter of trust (or conspiracy). I personally would prefer that the NSA be required to retain more of these records in order to provide verifiable accountability.

A similar conflict has arisen with some frequency in determining what to do with the records of state security services following the fall of repressive regimes (drawing the comparison only by analogy).  Nations have sometimes decided to destroy such records based on the conclusion that they were inappropriately collected and, as with minimization retention limits, to protect privacy and to prevent their use for any abusive purposes in the future.  Just as often, however, nations have decided to preserve such records for accountability and as evidence and history.  See, e.g., Antonio Gonzalez Quintana, Archival Policies in the Protection of Human Rights (pdf see esp. 51-55).  I don't think these latter considerations have been sufficiently considered in current debates over surveillance, perhaps today would be a good day to start.

[Updated to correct typo]