The National Security Agency has just released an important set of rules and procedures for electronic surveillance by the DOD (of which NSA is a part)./1…
It is a big-deal doc but it also appears to be more a housekeeping update of the previous one rather something that makes major substantive changes, unless I’m missing something, so my current plan is to tweet for specialists rather than write a NYT article for general readers./2
These procedures govern, at a 30,000-foot level, DOD/NSA surveillance that is authorized by Executive Order 12333 because it uses techniques that fall outside the sort of national-security wiretapping that the Foreign Intelligence Surveillance Act (FISA) regulates. /3
FISA covers collection inside the US from a wire of coms w/ at least one end on domestic soil. So this is for all the other stuff, like collection abroad, certain satellite interceptions, & warrantless bulk collection of foreign-to-foreign coms as they transit the US network./4
The previous procedures date back to 1988 and were signed by then-AG Edwin Meese and then-deputy secretary of defense William Taft. (They were released in 2014 as part of the Snowden fallout.)/5…
The 1988 version had been created to deal with the revolution in communications caused by the transition to fiberoptic network technology. (For more, see the secret post-FISA history of US surveillance law/policy/tech in Chapter 5 of my book “Power Wars.”) /6 Image
The 1988 Meese-Taft rules were called the “Classified Annex” to DOD Manual 5240.01. This new version is less censored & is called the “Redacted Annex” – in part bc some classified stuff, e.g. transit authority, appears to have been pushed off into a different implementing doc. /7
The new version was signed by Bill Barr and Mark Esper. It is getting pushed out at the end of the Trump administration, as often happens with things officials have been working for years and want to wrap it up before they walked out the door./8
However, as I understand it, this update is not Trumpy. It is something civil servants have been working on since the Obama admin and that just ran into a lot of delays. Here is what Glenn Gerstell, who was the NSA’s general counsel until recently, emailed me: /9 Image
Minor mystery solved: In Sept, out of the blue, Trump issued a directive “clarifying” that the NSA could hunt for coms of Americans being held hostage abroad. Turns out that was bc in finalizing this, DOJ worried that this longstanding practice lacked explicit authorization./10 Image
But the diffs between the old & new rules seem to be largely about codifying changes since 1988 (creation of ODNI, FISA Amendments Act), adding discussion of existing training, & codifying practices we've knew about since Snowden, like contact chaining thru US person metadata./11
That’s what I got for now./12

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More from @charlie_savage

3 Dec 20
New/exclusive: The government has used Section 215 of the Patriot Act to collect logs of visitors to a website, according to an ODNI letter to @RonWyden. /1…
Whether to preserve an ability to use this technique aimed at foreign web users (but necessarily risking collection of American web users) appears to map onto the Schiff-Lofgren negotiations over whether/how to narrow the Wyden-Daines amendment to the FISA bill in May. /2
FBI/ODNI disclosed that one of the 61 FISA court orders under Section 215 in 2019 involved collection of visitor logs for a particular (unnamed) web page from a foreign (unnamed) country. We don't know how often they do this, nor whether they always try to screen out Americans./3
Read 11 tweets
2 Dec 20
New legal explainer: Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability.…
Here are some highlights, with greater explanation at the link.
1. Can Trump prospectively pardon people before they have been charged with the crime, let alone convicted of anything? Yes. (Though still after the potential offense took place.)
2. Does pardoning necessarily eliminate all risk? No.
Trump can't stop state prosecutors, who can charge financial crimes. And it could eliminate a shield that lets witnesses avoid testifying before Congress or a grand jury.
Read 8 tweets
30 Oct 20
Came across a weird claim in @mtaibbi's take on @ggreenwald. The NYT walked back nothing about our reporting that the CIA assessed that Russia offered $ to incentivize killings of US troops, it was in Trump's briefing & the WH developed response options but authorized no action.
When the WH defended its failure to do even a diplomatic warning (which Pompeo and DOD later did) by lying that the CIA's analysis was too iffy to tell Trump, we reported that it was actually in his Feb. 27 written briefing & reported broadly to the intelligence community May 4.
We went on to dig out details of the direct (detainee interrogations) & corroborative ($ transfers/seizures, travel data) evidence & the absence of sigint & explained that the CIA had medium confidence in its assessment based on this while the sigint-focused NSA wasn't as sure.
Read 6 tweets
27 Oct 20
Kaplan's ruling that DOJ can't substitute the govt as defendant in Jean Carroll lawsuit accusing Trump of defaming her last year when he denied her claim he raped her in the 1990s. (Substituting the govt = dismissing the case for sovereign immunity.)/1…
The main part of the ruling is that a president is not an "employee" of a federal department or agency within the meaning of the Federal Tort Claims Act, the law which enables the government to be substituted for a defendant in certain lawsuits. /2
That's a very technical issue, so public discussion will focus on another he addressed as well: even if the FTCA did apply to presidents, comments to press denying accusations about something he did in his personal life before being elected were not part of his official duties./3
Read 6 tweets
21 Sep 20
And that President Trump's lawyers, Ty Cobb, promised to give Mueller's team advance warning if Trump was about to fire them./4
Or how their worries that Trump would fire them and his DOJ would shred the evidence they had gathered, they started stuffing everything they were learning into their search warrant applications so a copy would be in the courthouse safe, beyond Trump's reach. /5
Weissmann recounts an early shot across the bow from the WH when it somehow learned SCO had subpoenaed DeutscheBank -- for info about Manafort's $, not Trump's, though WH didn't know that -- as pushing them toward timidity in not investigating his finances./6
Read 12 tweets
4 Sep 20
This WP story about how Bill Barr confidently, even pugnaciously, told CNN viewers about a massive mail-in ballots fraud incident in Texas that never happened, is a reminder of some other things like that. /1
Like that time in July when he said a surge of federal agents sent to Kansas City had made 200 arrests in two weeks, which was false. /2…
Like that time in June when he told the public that the U.S. attorney for the Southern District of New York, Geoffrey Berman, had resigned, which was false. /3…
Read 6 tweets

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