Archive for the ‘National Security’ Category

National Security Letter (NSL) Resources

Friday, July 1st, 2016

After posting about the use of National Security Letters (NSLs) to abuse the press yesterday, I discovered a very useful paper on NSLs by Charles Doyle. The first one is an abridged version of the second.

National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background (abridged version of: National Security Letters in Foreign Intelligence Investigations: Legal Background.)

National Security Letters in Foreign Intelligence Investigations: Legal Background

Doyle identifies two perils posed by National Security Letters:

Contempt of Court

If an NSL contains a nondisclosure notice, it must advice the recipient of its right to seek, or to have the agency seek, judicial review. At the recipient’s request, the issuing agency must petition the court for review, stating the specific facts that support its belief that disclosure might result in one or more of the statutorily identified adverse consequences. 140 If the court agrees that such a risk may exist, it must issue a nondisclosure order. 141 (page 21) Failure to honor a nondisclosure order is punishable as contempt of court, 142…

Contempt of court sanctions come into play if, and only if, the recipient has sought judicial review and becomes subject to a court order.

Non-Court Order Penalties

…and if committed knowingly and with the intent to obstruct an investigation or related judicial proceedings is punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 (not more than$500,000 for an organization). 143

Unpacking the first reference in footnote 143, “18 U.S.C. 1510(e),”

(e) Whoever, having been notified of the applicable disclosure prohibitions or confidentiality requirements of section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of the Right to Financial Privacy Act [1] (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), or section 802(b)(1) of the National Security Act of 1947 (50 U.S.C. 436(b)(1)),[2] knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both.

As I read 18 U.S.C. 1510(e), it requires:

1. Notice of the applicable disclosure prohibitions or confidentiality requirements
2. Disclosure
1. knowingly (excludes accidental disclosure ?)
2. with the intent to obstruct an investigation or judicial proceeding

The first step in any government prosecution for leaking an NSL requires proof of the applicable disclosure prohibitions, in other words, that some identified individual was notified of the applicable disclosure prohibitions.

The list of people who could have leaked an NSL of necessity includes all the people in the government with knowledge of the NSL, which I suspect won’t be disclosed to the trier of fact, plus the recipient and their counsel, etc.

Government documents, even FBI documents get leaked on a regular basis.

The lack of NSL leaks appears to be more a matter of timidity than serious jeopardy. The very worse response to terrorist-fiction-driven legislation is to take it seriously.

The more NSAs are treated as anything other than Col. “Bat” Guano responses to a world only he can see, the deeper we become mired in unconstitutional habits and practices.

Begging National Security Questions #1

Thursday, May 7th, 2015

In the interview of Bruce Schneier by Steward Baker (formerly of the DHS and NSA), Bruce was too polite to point out that Baker was begging the question on a number of national security issues.

That sort of rhetoric comes up often in discussions of national security issues and just as often is unchallenged by reporters and other participants in the discussion.

One example (I will post on others) of begging the question was when Baker talks about the DNS reviewing passenger manifests from airlines to decide who they need to interview.

Baker “begs” the question of whether terrorists are flying airline monitored by the TSA and if they are, that TSA methods are sufficient to discover them. He simply assumes those to be true in order to justify his conclusion that the TSA needs the information from passenger manifests.

But what are the facts about airline passengers and the TSA?

If you look at: Passengers All Carriers – All Airports, a webpage maintained by the US Department of Transportation, Bureau of Transportation Statistics, you will find a table that reads in part:

 Year Total Passengers 2002 670,604,493 2003 700,863,621 2004 763,709,691 2005 800,849,909 2006 808,103,211 2007 835,436,440 2008 809,449,524 2009 767,816,588 2010 787,478,056 2011 802,134,604 2012 813,127,939 2013 824,956,471 2014 847,767,888 2015 63,344,516 Total: 10,295,642,951

Out of over 10 billion passengers, how many terrorists has the TSA apprehended?

0, nada, the empty set, none.

It isn’t possible to know from the available evidence if:

• There are no terrorists.
• Terrorists do not fly into or out of airports monitored by the DHS/TSA.
• DHS/TSA methods are insufficient to catch terrorists who are using US airports.

Rather than assuming terrorists justify the governments use of passenger manifests for screening passengers, Baker should be challenged to produce evidence that:

• Terrorists fly in or out of airports under the control of the U.S. government, and
• DHS/TSA techniques result in the arrest of terrorists.

Lacking proof of either of those points, there is no demonstration of need or effectiveness on the part of the DHS/TSA.

The government has the burden of proof for any government program, but especially ones that intrude on the privacy of its citizens. Force them to carry that burden in discussions of national security.