DOJ Memo Shows NSA And White House Lawyers Mainly Unconcerned About Evidence Obligations In Criminal Trials

from the let's-temporarily-sort-of-care-about-something dept

Charlie Savage of the New York Times has obtained another document detailing the internal guidelines of the NSA's STELLAR WIND program as a result of the NYT's long-running FOIA lawsuit against the government. The new document is a memo from the Department of Justice, which details its lawyers' attempts to suss out the government's obligation to defendants when it comes to evidence derived from classified surveillance programs.

As Savage points out in his post, much of the NSA program's inner workings (and abuses) have been detailed in previously-released documents, including an Inspector General's report obtained by the Times in 2015. That doesn't make this document [PDF] unworthy of a read, however. It doesn't provide more detail on the program or its apparent abuse, but it does make it clear the government didn't seem too concerned about potential due process violations arising from the obscuring of surveillance-derived evidence.

First, the memo points out very few DOJ lawyers and prosecutors have been "read in" to the program, which immediately makes it more difficult to balance adversarial issues in criminal prosecutions where the paper trail leads back to the NSA's warrantless surveillance.

But the OLC (Office of Legal Counsel) doesn't have the right lawyers on staff to make this determination. Then-OLC head John Yoo himself admits (via a quotation in the memo) that "criminal law is not [his] area." To remedy this, the OLC brought in two lawyers from the DOJ's Criminal Division -- Patrick Rowan and Christopher Wray -- to analyze processes and check for adherence to Rule 16 (defendant' communications and statements in the government's possession) and Brady (exculpatory evidence) obligations. But it appears once the two DOJ lawyers were "read in," they were forgotten about.

Wray told the OIG that after his and Rowan's read-in, they "were kind of left on our own." He said that no one directed him or Rowan to continue studying the Rule 16 issues or the government's Brady obligations in connection with international terrorism prosecutions, nor did anyone tell them to develop any judgments or opinions on the subject.

What is clear is that whatever changes were made at the NSA and DOJ were the result of journalism. According to Rowan's statements to the NSA's Inspector General, the NSA was, at best, "generally aware" of its evidence disclosure obligations "prior to the December 2005 disclosure… of the Stellar Wind program in The New York Times."

But the process in place -- and likely the process that continues today with the OLC's blessing -- was to spot cases that might present discovery issues and take steps to hide the origin of that evidence.

Rowan stated that if the NSA located any responsive but classified information, it would be expected to notify senior Justice Department officials with the requisite clearances about the information. Rowan said he was confident that if Brady information were known to the NSA, it would be brought to the attention of the Department and steps would have been taken to dismiss the case or otherwise ensure the program was not disclosed.

If the government wanted both program secrecy and a successful prosecution, the FBI would engage in something that looks an awful lot like parallel construction.

[Rowan] stated that the FBI had "walled off" any evidence it collected from inclusion in criminal cases by tipping out Stellar Wind-derived information under [REDACTED] with a caveat that the information in the tipper was "for lead purposes only." Rowan noted that OIPR [the DOJ's Office of Intelligence Policy and Review] also had in place a scrubbing process to delete program-derived information from FISA applications. Rowan expressed confidence that these mechanisms ensured that no program information was used in international terrorism prosecutions. Finally, Rowan stated that the FBI is "very quick to get FISAs up," thereby minimizing the likelihood that the NSA's Stellar Wind database would be the sole repository of Brady material.

The DOJ lawyers felt evidence issues still remained mostly unaddressed, but the OLC apparently lost interest shortly thereafter. The new head of the OLC discussed some issues with Rowan but told the DOJ "he did not believe the OLC followed up on Rowan's request that it continue researching these issues." Another OLC official said he had seen Rowan's work, but the office apparently decided Yoo's memo (the same Yoo who stated criminal law "wasn't his area") was the final word on the subject. This same official also stated he wasn't aware of any "formal procedures" for handling surveillance-derived evidence arising from the DOJ's examination of the subject.

The other DOJ lawyer "read in" to the program confirmed the OLC official's statement.

Wray also told us there was no organized Departmental effort to establish formal procedures for reviewing international terrorism prosecutions to comply with Rule 16 disclosure requests and Brady obligations. He said "the thinking was" that the Rowan memorandum was the "first step" toward devising "some kind of systematized process" for such reviews. However, we found no indication that OLC followed up on Rowan's request to further study these discovery issues with any kind of written product.

So, the answer on prosecution evidence obligations comes from a guy who knows little about criminal law. On the plus side (haha), he's a strong proponent of making all rights and liberties subservient to national security concerns. The FBI does its part to protect NSA surveillance programs by erecting parallel evidence gathering, which means defendants might actually be able to see the evidence used against them, but be unable to challenge the constitutionality of the original collection. This all works out very well for the government, which somehow managed to slack its way into a playing field tilted towards the prosecution despite having one of its flagship surveillance programs splashed all over the pages of the New York Times. Remind me again how leaks damage the government's ability to pursue investigations and prosecutions?

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  1. identicon
    Anonymous Coward, 5 Apr 2017 @ 1:38pm

    In certain circumstances, there is no Constitution, with good reason.

    How many Constitutional rights did Abraham Lincoln suspend in the first 100 days of his term?

    Watch the movie Unthinkable and tell me your thoughts there.

    reply to this | link to this | view in thread ]

  2. identicon
    I.T. Guy, 5 Apr 2017 @ 1:42pm


    Yeah, and he ended up with a bullet to the head. Great example.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 5 Apr 2017 @ 2:00pm

    Do you have a 60 foot sculpture of your head carved into a mountain?

    reply to this | link to this | view in thread ]

  4. icon
    That Anonymous Coward (profile), 5 Apr 2017 @ 2:12pm

    More proof of they are unable to try cases.
    If there might be any chance of losing, they worry about their reputations & bonuses more than the law.

    Of course their targets are 'Bad People™' so they shouldn't enjoy the same protections as 'Good People™' under the law, despite that whole everyone is equal under the law thing.

    Of course this is never a problem for 'Good People™' until someone decides they are a 'Bad People™' because they need another slam dunk conviction for their next bonus level. Then those newly minted 'Bad People™' are left wondering why the entire story wasn't told & why information was withheld and suppressed.

    The system is failing. Its been failing for a while, and no one has the will to demand change because they fear soundbites about being soft on crime. The problem is its not very hard to tell the difference between the 'Good Guys™' and the alleged 'Bad Guys™' because some of that the 'Good Guys™' are doing things much worse than the 'Bad Guys™'.

    reply to this | link to this | view in thread ]

  5. icon
    Roger Strong (profile), 5 Apr 2017 @ 2:14pm


    Things have gotten awkward since coworkers noticed my resemblance to the Easter Island statues and put two and two together....

    reply to this | link to this | view in thread ]

  6. icon
    MDT (profile), 5 Apr 2017 @ 2:20pm

    Damage from Leaks

    Remind me again how leaks damage the government's ability to pursue investigations and prosecutions?

    Isn't it obvious? They have to expend additional resources and time to hide the illegal activity now. If the leaks hadn't occurred, they would not have to expend those resources and time to hide the activity, leaving them with more resources available for illegal activity.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 5 Apr 2017 @ 2:45pm

    Ahh, the Abraham Lincoln years: that golden age of prosperity and happiness, when curtailing American lives and depreciating American property was the government's chief business. (All the governments' chief business. And they were all good at it.)

    From an environmentalist point of view, the period was also a great generator of national parks.

    reply to this | link to this | view in thread ]

  8. icon
    Roger Strong (profile), 5 Apr 2017 @ 2:58pm


    Back during the Clinton administration there were a few news stories about an accused terrorist who was being held apparently indefinitely, no trial, his legal counsel effectively forbidden to communicate with him. Perhaps there you could make the case for "In certain circumstances, with good reason."

    Of course the next administration ran with that and did it for hundreds of people. Just on vague (and often wrong) suspicions that they might have some connection to terrorism. Laws approving otherwise criminal behavior by government tend to quickly have their scope greatly expanded.

    Note how the OLC "apparently decided Yoo's memo was the final word on the subject." That's the same John Yoo who wrote the Torture Memos - handing Bush II power to turn the country into a torture state...

    Watch the movie Unthinkable and tell me your thoughts there.

    A movie which asks the classic pro-torture question "Is it OK to torture a man to prevent a bomb from going off." With an added "Is it OK to torture a man's children in front of him to prevent a bomb from going off."

    We know John Yoo's answer:

    On December 1, 2005, Yoo appeared in a debate in Chicago with Doug Cassel, a law professor from the University of Notre Dame. During the debate, Cassel asked Yoo,

    'If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?', to which Yoo replied 'No treaty.' Cassel followed up with 'Also no law by Congress—that is what you wrote in the August 2002 memo', to which Yoo replied 'I think it depends on why the President thinks he needs to do that.'

    reply to this | link to this | view in thread ]

  9. identicon
    Dariusz G. Jagielski, 5 Apr 2017 @ 5:24pm


    This shows how much the U.S. government "cares" about its people. Someone needs to do something about it before it's too late. I feel... like there's no legal way to stop them. Not anymore. You'll figure what has to be done. Freedom at any cost.

    P.S. I do not condone killing people. Please use anesthetics instead of bullets.

    reply to this | link to this | view in thread ]

  10. icon
    That One Guy (profile), 5 Apr 2017 @ 6:33pm

    First they came for...

    Careful with that logic, when you start making 'exceptions' to the rules like that it's not will those exceptions expand until they cover you as well, but when.

    When you operate under the idea that the law only applies so long as it doesn't get in the way of what you want to do you undermine any value to it or respect due it, making it optional and at the whim of those in power.

    If those in charge don't respect the law, beyond might-makes-right 'I have the guns, and I have the power, so do what I say', why should anyone else?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 6 Apr 2017 @ 12:43am

    "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."

    Abraham Lincoln
    First Inaugural Address
    March 4, 1861

    reply to this | link to this | view in thread ]

  12. identicon
    Stuffster, 6 Apr 2017 @ 4:49am

    Who will even find the Brady material?

    If my browsing history collected in a secret database hypothetically contained a search for...

    build a bomb plans 3d printer

    ...who, if anyone, would be responsible for noticing and reporting that my next browser action was a search for...

    build a comb plans 3d printer

    It's pretty clear that a human would notice this and that this should be reported as exculpatory evidence.

    But there's no mechanism for defendants to gain access to the collected data to search for alternative explanations themselves, and as algorithms are used and tuned to identify suspicious activity in a haystack of data, it's doubtful that companion algorithms will be designed to seek out exculpatory evidence.

    When a human stumbles across both damning and exculpatory evidence, there is an obligation to report both. But will the same hold true of AI? Can prosecutors simply take the suspicious data that gets spit out of their culling algorithms, and never have an obligation to report data that's useful to the defense simply because no human has ever looked at the raw data?

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 6 Apr 2017 @ 6:38am

    Re: First they came for...

    Actually Guy, there are "exceptions" built into the rules. Of course you have to be careful when you execute those exceptions, but they are not foreign in terms of what powers the government are legally entitled to utilize, the Constitution allows it.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 6 Apr 2017 @ 6:42am

    Re: Who will even find the Brady material?

    It is not like the computer determines guilt or innocence (yet.)

    Searching how to build a bomb doesn't get you arrested, although it might be likely that someone will start looking at you closer to learn what you may or may not be planning.

    reply to this | link to this | view in thread ]

  15. icon
    Roger Strong (profile), 6 Apr 2017 @ 7:51am

    Re: Re: Who will even find the Brady material?

    The problem is confirmation bias.

    "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him."
    - Cardinal Richelieu

    Richelieu's point is valid even without evil intent. Even without electronic surveillance there are endless cases of people put through hell because of confirmation bias: Officers seizing on details that support their suspicion while ignoring those that oppose it.

    WITH electronic surveillance - emails, Facebook posts, Google search history, grocery purchase history etc. - instead of six lines they're getting six million. They'll always be able to find something with which to hang the most honest of people. And there's a growing number of examples of this happening.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 6 Apr 2017 @ 8:04am

    Re: Re: Re: Who will even find the Brady material?

    Roger, it might not even take evil intent. Laziness could be a factor, they might just go with "hey, we have our guy" and not bother to search for anything more. Once those in the justice branch set their sights on something, it is really hard to get them off of that in some cases.

    reply to this | link to this | view in thread ]

  17. identicon
    Wendy Cockcroft, 7 Apr 2017 @ 7:28am

    Re: Savage.

    Sustained SOPA levels of activism would do it; latch on to the Resistance movement for the numbers. There's always a certain level of quid pro quo with these things, given that we lack the "quid" the corporations have to effect change in governance.

    reply to this | link to this | view in thread ]

  18. icon
    Coyne Tibbets (profile), 8 Apr 2017 @ 9:32am

    The new norm

    Merely more evidence that parallel construction (or whatever it is called) is now the norm, rather than the exception. If that weren't the case, there wouldn't be so many established processes for doing it.

    reply to this | link to this | view in thread ]

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