The defendants are charged with a string of armored-car robberies. As part of its investigation, the Government obtained (and later produced) phone records for the period beginning September 1, 2010. One of the defendants also wants call records for July 2010, when one of the robberies took place, because he says that will support his claim that he was somewhere else at the time. Previously, the Government said it tried but failed to get the records from the service provider, and therefore "advised Defendant that it did not have the records." Actually, Government (this recent order states), Defendant thinks you probably do:
Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order related to cellular telephone data collected by Verizon, Defendant Brown now suggests that the Government likely actually does possess the meta-data relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.
"Meta-data," as you probably know by now if you didn't already, is data about other data but not actually part of it (my definition). For a phone call, the main "data" would be the conversation, and the "meta-data" would be things like when you made the call, what the closest cell tower was when you made it, the number you called, and so forth. That's what Brown wants, and what the Government told him it doesn't have and couldn't get. Only, it does have his meta-data, because it has everybody's meta-data:
As relevant here [the court went on], the [FISA] Order appears to authorize, under 50 U.S.C. § 1861, the production of “all call detail records or “telephony metadata” created by Verizon for communications … wholly within the United States, including local telephone calls.” The Order defines “telephony metadata” as “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (MSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.”
I'm guessing Brown was a Verizon customer, but it probably doesn't matter.
Under 50 U.S.C. § 1806, the target of such surveillance can ask for the information obtained. If the Government claims disclosure would harm national security—and you get no prizes for correctly guessing whether it will do so here—then the court reviews the matter in private to decide whether the surveillance was lawful (otherwise the review is in open court). Accordingly, the court ordered the Government to make the national-security claim if any immediately (yesterday was the deadline), because the trial is apparently underway.
As the court noted, the Government could avoid this particular unpleasantness by producing the requested material and stipulating that it would not use it against the defendant. I shall now go see how it responded (if it did) and update accordingly.
Update: The docket available online doesn't show any response by the Government at all. There is a docket entry dated June 11, the day after the order was issued, that is described only as "restricted/sealed until further notice." That could be it, or it could be something else you're not allowed to know about.
Update II: The Sun-Sentinel reports that the Government asked for more time to respond (to be fair, they only had two days), and the judge agreed to allow "an extra week or two." "There are security procedures that must be followed," said an AUSA, and since this is a citizen asking for his own cell phone records, presumably the "security" problem lies in explaining just how the Government happens to have them when nobody else does. Or, more likely, in figuring out how not to explain that.
Of course, neither did Alberto Gonzales, or if he did, he didn't recall:
Now, I don't know whether it's worse to not know anything or to not recall anything. I mean, if you don't know, you don't know, but if you don't recall, then you might know but not recall knowing or you might not know and not recall whether you know or not. Although I guess if you say you don't know, we don't know whether you never knew or whether you once knew but don't know now, which would be the same as not recalling. On the other hand, saying you don't know could potentially be disproven, like by a document showing you did know at the time you said you didn't. But if you say you don't recall, and then it turns out you knew, you could still just say you didn't recall. So I would say that saying you don't recall is worse because we can never really know whether you do or not.
I'm glad I could clear that up, although if they're both lying their asses off, which seems likely, it doesn't matter.
Presidential historian Michael Beschloss sends out some great stuff on Twitter (@beschlossDC). On Mother's Day, he tweeted this image of a letter from JFK to his mom, dated November 3, 1962. In it, the President tells his mother he has signed the copies of a photo he received from Soviet Premier Nikita Khrushchev, which Khruschchev apparently had previously autographed at the request of Mrs. Kennedy. He makes sure to tell her that he thinks the picture "is most interesting and will be highly regarded."
He does also mention that, since he is the President, it might be best if in the future she would check with him before contacting any other heads of state directly. Contacts by the President's mother "are subject to interpretations," he suggests, "and therefore I would like to have you clear them before they are sent."
This was first posted about a week ago by the JFK Library, and as they noted, this letter was written less than a week after the end of the Cuban Missile Crisis (in fact, the blockade of Cuba was still in effect at the time). They didn't say when Rose Kennedy had written to Mr. Khrushchev to begin with, and presumably it was well before the crisis started on October 14, but regardless it is highly amusing to imagine the President learning about this and then (probably after a facepalm) trying to figure out exactly what to say to Mother in this letter.
According to the JFK Library's post, she wrote back and said she understood and that it just hadn't crossed her mind that this might be a problem.
More evidence that even after you are all grown up and become the President or whatever, your mom will always be your mom.
The Obama administration on Wednesday is expected to grant members of the Senate Judiciary Committee access to its legal justification for killing suspected terrorists who are U.S. citizens.
Yep, after months of asking, the Committee will finally be granted a chance to see the still-secret legal memo rumored to explain the administration's basis for arguing that it can lawfully target and kill—without a warrant or trial—any United States citizen that it deems to be a terrorist. Only members of the House and Senate Intelligence Committees have seen it so far.
I agree with this decision. Since the Constitution gives Congress the power to, among other things, "define and punish ... Offences against the Law of Nations;" to "declare War ... and make Rules concerning Captures on Land and Water," to "raise and support Armies," and to "provide for calling forth the Militia to ... suppress Insurrections and repel Invasions," and given the existence of the Fourth and Fifth Amendment protections against government intrusion and stuff like that there, it does seem to make some sense that the Executive Branch would LET CONGRESS TAKE A PEEK AT ITS LEGAL REASONS FOR CLAIMING THE ABILITY TO KILL AMERICANS WITHOUT DUE PROCESS OR JUDICIAL REVIEW.
But that's just me.
On Twitter, @aves1234 noted the irony of this ad appearing next to the story on The Hill's web page:
That's a bomb, not a drone, but will almost certainly be mounted on drones when available and then dropped on appropriate targets, which, again, the memo reportedly says can legally include U.S. citizens. (As before, this should not necessarily be taken to mean I think we can or should freely bomb non-citizens.)
On the bright side, it's a small-diameter bomb, so maybe it won't be so bad.