Toddler’s Grandfather: NSA’s Terrible Twos Tantrum

May 25, 2015–A few days ago it seemed as if we were finally set to emerge from this wiretapping nightmare. Congress is going on vacation so the spooks have to go home! (Only in America!)

The law containing the provisions under which the National Security Agency (NSA) claims authority to carry out dragnet eavesdropping of citizens is set to expire in six days–on May 31st. Congress had been working on a replacement bill, the so-called “USA Freedom Act,” which contained tighter definitions of what is covered, a more explicit requirement for legal review, a modicum of public representation at the Foreign Intelligence Surveillance Court (FISC), and a clause prohibiting NSA from holding actual custody of the telephony data. The House of Representatives passed that bill but it stalled in the Senate.

In the Senate there was a clash of preferences. That body’s majority leader, Kentucky Republican Mitch McConnell prefers the original, draconian surveillance rules. An unreconstructed Neanderthal, McConnell has apparently drunk the kool-aid and believes the dragnet eavesdropping, which cannot be demonstrated to have had much of an impact at all, is a vital tool for security efforts in the age of terrorism. McConnell would not let the USA Freedom Act come up for a vote. His preferred legislation, with its euphemistic “Section 207,” and “Section 215” alleged “authorities,” then went down in flames. McConnell could not generate the 60-vote supermajority necessary to pass this bill in the U.S. Senate. At that point everyone left for recess (vacation).

It looked like a new age was about to dawn. The old law expires. The new bill, not passed, is not in place. Net result: there is no legal basis whatever for conducting dragnet surveillance. McConnell is said to have demanded senators return early from vacation so they can vote on May 30th. But it is not clear that the task of passing a bill in the Senate, reconciling that with what the House has already passed, and getting the result to President Obama for his signature can be physically accomplished before the deadline for the law’s sunset.

Now enter the spooks. There is a trial balloon in today’s New York Times. The proverbial anonymous source now asserts that the sunset of the law does not matter. The alleged authorities for dragnet eavesdropping were “grandfathered” into law. In this view they cannot be undone!  Got that? Behind the scenes at the NSA, intelligence officers were questioning these programs on cost effectiveness grounds because they did not accomplish anything. A firestorm of public criticism followed Edward Snowden’s revelation of the projects. A presidential review group found reasons to question the eavesdropping (though it did not quite bring itself to knock it down), then a government watchdog panel went the whole distance. A federal judge found the law “probably” unconstitutional–and now a circuit court of appeals finds the baseline argument the spooks have been relying upon–that citizens have no interest in the privacy of their business (read phone) records–is without legal basis. The NSA skipped its most recent deadline for filing for the next FISC approval of its dragnet eavesdropping (meaning that its authority for this is rescinded). Now the law actually expires.  So all of this happens, we are told, and none of it makes any difference to the spooks’ authority to intrude on everybody? This is zombie law! 

More to the point, this is the behavior of a toddler in the terrible twos. Take away her toy and she throws a tantrum. In a democracy, when the security services decide they are above the law they have gone far past the line. Not only is the behavior immature and improper, it violates their very oaths to the Constitution. The time has come to clean house.

 

Back on the NSA Watch

March 30, 2015–The wire news service Associated Press is reporting this morning that our spooks of the National Security Agency (NSA) have been, in effect, dishonest as well as disingenuous. Readers of this space–and those who have followed the NSA dragnet eavesdropping controversy–will know that the spy agency defended itself against the Snowden revelations by making a big deal about how important was the dragnet. The spooks indulged in a series of misleading claims about how many terrorism cases had been based on the mass recording of people’s phone connections, how many plots had been broken up due to this information.

The NSA claimed not just that national security had been damaged as a result of the public discovering that the government is watching people 24/7, but also that the United States could not afford to do without this intelligence. This assertion formed the basis not only for the agency’s defense of its illegal and unconstitutional surveillance, against Congress and national-level policy reviews, but of NSA’s appeals to President Obama to permit it to continue the eavesdropping.

Now the Associated Press tells us that months before the Snowden leaks, officials within the NSA themselves proposed to terminate the dragnet surveillance. The recommendation was based on the proposition that the eavesdropping yielded little intelligence of value while requiring substantial dollar outlays to store the data obtained! Attentive readers will notice that NSA officials here were making the identical argument to what many said following the Snowden bombshells, when the National Security Agency openly asserted the opposite–that the surveillance data was invaluable.

There can be no plainer illustration of the arrogance and complete lack of integrity of our intelligence services. The latest report again indicates that our spooks seek to preserve any program they are capable of implementing, not those spy programs that are producing valuable intelligence. This is not “national security,” it is pure posturing–on a level with the CIA’s attempt to keep open the option to resume torture even after the black prisons project had been revealed and President George W. Bush had closed the prisons and sent the detainees along to Guantanamo Bay. The worthlessness of a “strategy” built on a basis like this is palpable.

Legal authority for the dragnet surveillance expires this year along with the sunset of the legislation that created it, let me remind–on the basis of NSA misleading Congress then too. It is time to get rid of this albatross which continues to discredit America’s intelligence community.

The NSA Watch

January 3, 2015–In the first of a series of long-form collections, Prados here reprises his commentaries on the National Security Agency domestic spying and eavesdropping scandal. This selection includes commentaries posted from the end of 2013 through the winter of 2014, a period of time during which the NSA spying was found wanting by courts, presidential reviews, and a public privacy board. President Barack Obama promised reforms. These essays analyze the evolving scandal, providing background on individuals and issues involved in the controversy.

The collection is available as a product for a nominal fee from the “Downloadable” section of this website. It appears under several national security and intelligence categories.

Red Flag for the Spooks: The Gathering Storm

July 11, 2014–Remember back in March? What Obama said? The spy agencies served up a menu to President Barack Obama they thought could turn the tables and get them out of deepening scandal. The National Security Agency (NSA) advanced a scheme that, while appearing to respond to criticism of its dragnet eavesdropping, might actually permit it to collect more information on Americans and other citizens. The president thought the option workable. Obama said, “I’m confident it allows us to do what is necessary in order to deal with the dangers of a terrorist attack, but does so in a way that addresses some of the concerns that people had raised.”

Meanwhile the Central Intelligence Agency was counterattacking against Congress on the Senate torture report, claiming the Senate Intelligence Committee had violated secrecy regulations, referring the case of an allegedly purloined document to the Justice Department for criminal prosecution.

Fearful Leader James Clapper must have felt himself riding especially high last week, when the independent Privacy and Civil Liberties Oversight Board delivered its opinion on the NSA’s targeted (as opposed to its dragnet) wiretapping, which expressed itself “impressed with the rigor of the government’s efforts to ensure that it acquires only those communications it is authorized to collect.”

Then it all came crashing down.

In short order a series of developments have blown away the gossamer webs of complacency. On July 6, just a few days after the Privacy Board report, the Washington Post published an extensive expose that reviewed some 22,000 actual NSA surveillance reports, finding that just 11 percent of those intercepted were targets approved by the Foreign Intelligence Surveillance Court. Nine out of ten persons wiretapped were bystanders.

The spooks’ irrepressible consigliere Robert S. Litt jumped up with the its-just-as-we-said defense, remarking that “the most you could conclude from these news reports is that each valid foreign intelligence target talks to an average of nine people.”

That lasted for just two days. The parsing depends on what is a “valid” foreign intelligence target. On July 9 in The Intercept, journalists Glenn Greenwald and Murtaza Hussain revealed that the NSA targeted numerous American citizens, including officials of American Muslim lobbying and advocacy groups, a Pentagon official running for political office in Virginia, and other prominent Muslim citizens. The FBI, functioning as the NSA’s target provider, put out training materials clearly racist in nature, picturing Muslims as conspirators (“Mohammed Raghead”) and fundraising for any purpose as intended to support terrorism.

Let’s go back to that nine-out-of-ten bystander rate. We’re not talking 2,400 terrorists, here, plus everyone they communicated with. We’re talking a small number of legitimate targets–Anwar al-Awlaki is on that list–a much larger list of innocents targeted–and then 90 percent more innocent bystanders in the NSA crosshairs. Once the NSA finds any expression of less than sterling content, the FBI then organizes a sting to entrap the person.

I mentioned the novel 1984 in a recent posting. What could be more Orwellian than this? It is totally illegitimate.

Meanwhile there is the matter of the German spying. The NSA wiretapping of German prime minister Angela Merkel has been deplored for some time. Der Spiegel, the newsmagazine, reports the NSA has its largest listening posts in Europe ensconced near Wiesbaden. As noted here the other day (“NSA: Who’s Damaging American National Security,” July 5), the German parliament has begun to investigate NSA spying in Germany–and the CIA set one of its spies to find out what is happening. German counterintelligence caught the agent. Now we get the everybody-spies-on-allies line from flak Michael V. Hayden (“Michael Hayden’s Faustian Bargain,” April 29). Hayden probably wishes now he had kept his mouth shut. A couple of days ago the Germans arrested a second alleged CIA spy, and their government has declared the CIA station chief persona non grata. That’s the kind of thing that happened between the U.S. and Russia during the Cold War. To have it now with Germany, a close U.S. ally on whose territory thousands of American soldiers and airmen are still stationed, is astonishing. The damage to U.S. national security is evident.

So here’s where it begins. “It” being the swamp that is going to swallow Fearful Clapper and his minions. As I explain in The Family Jewels, these scandals usually have a president defending the spooks, then tossing them overboard when the White House itself becomes implicated. Now Obama is indeed on the hot seat. He promised NSA reforms and said a good scheme has been adopted, only to have American citizens openly spied upon with an enormous army of the also-threatened right behind them. Muslim-American organizations have demanded explanations direct from the White House. Obama had discussed the NSA eavesdropping with Angela Merkel, making undertakings with Germany only to have continued espionage–and CIA spies–revealed. This calls into question Mr. Obama’s leadership of the U.S. intelligence community.

The marker quietly laid down several days ago is that the White House knew nothing about the CIA spies in Germany. That’s a very temporary holding position. Here is a high profile intelligence matter with a major U.S. ally who grants basing rights to American troops and whose cooperation on the Ukraine, in NATO, in Afghanistan, and elsewhere is quite necessary. Obama had already been revealed spying on Merkel. He made promises. The Germans actually tried to negotiate a no-spy pact. Now the CIA is caught with its hand in the cookie jar? In behalf of the NSA? Obama either did not bother to inform himself of what our spooks were doing (which seems unlikely), or he was the ringleader (also unlikely), or the spy agencies are out of control. I think the president will be obliged to demonstrate leadership by cracking down.

Yesterday the Department of Justice announced it is dismissing the CIA’s complaint against the Senate intelligence committee. The shoe is falling. NSA, CIA–welcome to the Brave New World.

 

 

U.S. Intelligence Tied Up in Knots

June 8, 2014–Time for an update. I considered headlining with a question, “What Does Ruthenia Say to U.S. Intelligence?”–then the fanciful rejoinder, “You speak with forked tongue!”–but that was too facetious. I decided it’d be better to let the spooks get themselves into trouble directly. They’ve been very good about that lately, so good that you have to wonder what they are doing calling themselves “intelligence” agencies.

First let’s observe the antics of intelligence community top lawyer Robert S. Litt. The always entertaining consigliere to our spy chieftain, Director of National Intelligence (DNI) James Clapper, Litt has been working both sides of the street lately. Late in April the nation, along with quire a few other countries, celebrated “Sunshine Week,” a occasion that marks efforts to reduce government secrecy, encourage openness, freedom of information, and the like. Eager to obtain some official pronouncement, sponsors invited intelligence officials. Under pressure to get out in front of the public relations disaster that has been the NSA eavesdropping scandal, Fearful Leader Clapper handed this assignment to his consigliere. Lawyer Litt appeared at American University’s law school on April 20. This was the consigliere attempting to charm his audience.

Part of Mr. Litt’s good cop routine was where he declaimed that “These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy. We have had to reassess how we strike the balance.” He claimed credit for the ODNI on the website “IC on the Record.com,” where the spooks have been posting pieces of legal filings and decisions they have long kept secret. He repeated what General Clapper had said elsewhere–the spooks would have taken less heat if they had only been forthright about their eavesdropping. He concluded with three “principal steps” to be taken: high-level attention to the problem of overclassification, efforts at “proactive transparency;” and, the need for a commitment “to look critically at all potentially responsive documents” that could be released.

It sounded pretty good if you didn’t know the spooks’ real status. Most important, the statement that openness would have trumped the NSA scandal is not open to judgment because the spooks were confidently saying nothing on the assumption that secrecy would protect them. Once the Snowden leaks began to put surveillance issues on the table the spooks still said nothing. Mr Litt took credit for the “on the record” website as if it were the spies being pro-active for openness whereas the truth is that President Barack Obama ordered Fearful Leader Clapper to set up that site and pack it with the NSA legal papers. Odds are that Clapper objected to releasing those documents until he saw he had no choice except to do so.

A different measure of proactive transparency is the content of the intelligence community website. In fact, it contains no document of any nature other than what ODNI was directed to declassify. Contrary to some of the press releases on that very website, even on the eavesdropping projects there are no program histories, no progress reports, no inspector general audits, no cost data, no analyses of effectiveness; just the antiseptic claims of legal memos filed to the Foreign Intelligence Surveillance Court. More than that, the website page that deals in “oversight” contains nothing on the extensive congressional controversies ignited by the Snowden leaks, merely the response to one senator’s specific query, plus a series of items to suggest that officials solicited views on how they could protect civil liberties. There is an April report by a brand-new NSA civil liberties and privacy office which contains no analysis whatsoever of spooks’ behavior but reiterates claims the agencies have already made for why citizens should not fear the NSA dragnet. The section of the website that records officials’ public statements, for the man charged with civil liberties protection, contains nothing more recent than August a year ago, when he was claiming to the government’s Privacy and Civil Liberties Oversight Board that questions it was posing had already been answered by an anodyne (and boiler plate) briefing. The most recent entry for Fearful Leader Clapper himself was two months old.

This is the norm, not the exception. Take the CIA website. Five directors ago Porter J. Goss took measures to reduce CIA’s extent of contact with the public, including making its website less open. Michael J. Hayden, who additionally terminated most outreach by CIA historians, at least compensated by reinvigorating the website and posting his own speeches and press comments, a practice which Leon Panetta continued between 2009 and 2011. But David Petraeus shut that down right away. John Brennan has, if anything, closed the door even tighter. Today the “news” that merits a press release on the CIA site is its pathetic joke, in connection with its first twitter post, that it will not “confirm or deny” its use of those very words in that message. The “press release” previous to that was on May 22 and carried the director’s Memorial Day message. The most recent speech from the director dated from March 11.

If that amounts to proactive transparency I’m a fruitcake.

Meanwhile, Consigliere Litt worked the other side of the street. His speech asserted that “none of the leaks has shown that the government was engaged in any willful violation of law”–apparently constitutional violations do not breach “law.” The assertion ignores the conclusions of two review boards and a federal court decision and is, at best, arguable.

Mr. Litt excused NSA’s efforts to defeat encryption systems built into commercial software–a matter that is the subject of another law–with the glib comment that that’s what spy agencies are supposed to do. All of which makes it rather hard for U.S. high tech firms to convince their foreign customers that American-built equipment and our software are kosher. Small wonder that corporations’ cooperation with the NSA eavesdropping has evaporated faster than a plate of ice cubes in the desert sun, or that corporate officials, like Google’s chief of security, Eric Grosse, are saying, “No hard feelings, but my job is to make their job hard.”

Two days ago Consigliere Litt was back–in an appearance not noted on the ODNI openness site. Now he laments the “unquestionable loss for our nation that companies are losing the willingness to cooperate.” Mr. Litt is quick with the threat too: “sooner or later there will be some intelligence failure and people will wonder why the intelligence agencies were not able to protect the nation.”

The spooks are actively blaming the messenger, resisting any conclusion that their own spying, not the revelation of it by a disaffected employee, is what has damaged the nation. They would prefer to construe their parochial interests as the national security. I know I have written this before but it is more true with every passing day.

By definition every intelligence failure involves an inability to protect the nation, and if there is one element of commonality that extends across the board of these failures, it is the petty jealousies and private competition among the spy agencies, not the fact of whether or not the spooks are sucking up every single type of data that might be technically feasible. More often than not–and that includes 9/11– the data was in the system but the agencies didn’t share it. For 9/11 specifically (which we’ve discussed in this space before), the terrorists who would have been revealed by the NSA metadata, which at that time was not being collected, were in the system at least two other ways. Robert Litt’s invocation of the threat of an intelligence failure to justify intrusive spying is not only scaremongering, it is disingenuous.

So the spooks’ alleged privacy protectors tell us everything’s fine? Well, last week’s news was that NSA is pulling down photographs transmitted on the web, incorporating the ones good enough for facial recognition into its database–at a rate of 55,000 a day. I guess they don’t think that’s a privacy breach. Our new NSA chief, Navy Admiral Michael A. Rogers, hastens to assure the public that the database is only intended to look for foreign spies. Naturally that remains true only until it’s not. Ambitious leaders, unscrupulous investigators, all-important goals–any number of factors can combine to override supposed protections, exactly as happened the day after 9/11. It’s better not to have the temptation.         

Meanwhile, Fearful Leader Clapper, out of character for a brief moment, said this weekend that Snowden’s leaks have not been so damaging after all. Why? Because Snowden did not take with him so many documents as the NSA had feared. Edward Snowden has said that all along. The spooks did not believe him–or they used the larger number to magnify the alleged damage, hoping to obtain a better outcome from the scandal. One of the documents on the DNI’s openness website is the December 2013 preliminary report on the impact of the Snowden leaks. The review board “assesses with high confidence that the information compromise by a former NSA contractor . . . will have a GRAVE impact on U.S. national defense.” Reminiscent of the “declassification” of the now-notorious national intelligence estimate on Iraq’s supposed weapons of mass destruction, used to justify George W. Bush’s invasion of that country; the released “document” amounts to a few paragraphs out of dozens of pages of detailed argumentation. You could drive a truck through the redactions–and you can make a document like that say anything. Proactive transparency? More like spin-doctoring. All this is so far removed from the intelligence community’s vision of “speaking truth to power” that it’s embarrassing.

NSA: Clapper’s Solution to Lying

April 2, 2014–General James Clapper has had enough. He can’t take any more. The Director of National Intelligence, tired of being caught lying when confronted with questions from his congressional overseers, has finally contrived a solution: don’t answer.  Then, months later, reply quietly in a letter and hope that no one pays attention.

So it is with the latest evidence of intrusions by the National Security Agency’s eavesdroppers. Predictably, it was a question from Oregon democrat Ron Wyden at a January 29, 2014 hearing of the Senate intelligence committee that brought on this maneuver. Asked if the NSA had, in fact, conducted warrantless searches of Americans’ phone calls, Director Clapper replied, “There are very complex legal issues here,” and then clammed up.

Two months later, with the public’s attention diverted to the crisis in the Crimea and the breakdown of Israeli-Palestinian talks, Clapper sent Senator Wyden a letter which affirmed the truth, albeit in spookspeak. His March 28 letter stated, “there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence . . . . As you know, when Congress reauthorized [the relevant section of the FISA Amendments Act], the proposal to restrict such queries was specifically raised and ultimately not adopted.”

General Clapper could not do other than affirm the truth behind Senator’s Wyden’s question. Documents revealed by Edward Snowden last summer already show this to be the case. The DNI himself, under orders from President Obama, divulged FISA Court rulings that further confirmed this. So did an August 2013 compliance assessment from the NSA and Justice Department which found instances of these intrusions. Where are the “complex legal issues” that prevented Clapper from answering the question at an open hearing? My guess is that they were reporters and cameras.

Let’s deconstruct the substantive defense in the director’s March 28 letter. General Clapper relies on three elements: that the phonecall contents were legally obtained, that the actions occurred under FISA court judgments ruling them consistent with the law and the Fourth Amendment, and that Congress had considered and rejected a change in the law underlying the eavesdropping while renewing it.

Phonecall contents were obtained legally only in the sense that some FISA document referred to the activity in some fashion. As we should know by now, the intent of the 1978 law was to ensure that all wiretaps were covered by specific court orders. That’s different from this eavesdropping. Clapper’s top lawyer Robert S. Litt told the Privacy and Civil Liberties Oversight Board on March 19 (reported here in “Spy Scandals Update,” March 20, 2014) that it would be an inconvenience for the FISA court to have to rule on every request for a wiretap. Litt actually implied there are a substantial number of these kinds of intrusions when he said the number was much greater than 288–the figure for queries against “metadata” found in blue ribbon panel reviews of the NSA traffic analysis intrusions. Interesting that.

Clapper’s second point is demonstrably false. There was no FISA court opinion which considered the application of the Fourth Amendment to this spying until very recently. When an August 2013 review found transgressions that opinion was not on the books. The validity of that opinion can still be disputed but the point is that it did not exist at the time of the violations. As for the argument that Congress rejected changing the law, the question there is whether the NSA and DNI were truthful at the time in what they told the legislators about the real threat, their alternative means, and the bottom line requirements. Judging from the intelligence community’s track record, the likelihood they were honest with Congress is very low.

These are exceedingly thin reeds. Thus are Family Jewels shielded, by desperate defenses. As Senators Ron Wyden and Mark Udall put it in a joint press release yesterday, “This . . . poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure an authorization before monitoring his or her communications. This fact should be beyond dispute.” General Clapper’s credibility as a spokesman for U.S. intelligence remains near zero. He should go. President Obama needs to make that part of his NSA reforms.

 

Spy Scandals Update

March 20, 2014–Don’t think for a moment that the Spy Scandals involving the Central Intelligence Agency (CIA) and the National Security Agency (NSA) have gone away. Today there are several relevant items to report.

A week ago I argued in this space (“The Family Jewels Crisis,” March 12, 2014) that presidents circle their wagons when controversy that arises from the intelligence agencies rises to a certain level. In my book The Family Jewels I showed how that works. Now we have more evidence that that is happening. You’ll recall that the CIA filed a criminal notice to the Department of Justice alleging that investigators from the Senate Select Committee on Intelligence broke the law in obtaining a document demonstrating the CIA’s response to the Senate torture report is disingenuous. Now Attorney General Eric Holder has commented. In his first public remarks on the matter Holder says that the Justice Department receives many criminal referrals and often declines to investigate or to prosecute.

That sounds suspiciously like an intention to cut the CIA loose and leave it flapping in the wind. You can be sure there will be more on this.

Meanwhile there’s also a fresh development in the NSA eavesdropping scandal. National Security Agency officials showed up yesterday to testify at PCLOB, the awkwardly named Privacy and Civil Liberties Oversight Board, which continues to be quite alarmed at the agency’s dragnet eavesdropping (see “Funny Name, Serious Business,” January 23, 2014; “”Independent Agency Trashes NSA Claims,” January 24, 2014). Appearing at PCLOB’s latest hearing were the Director of National Intelligence’s top lawyer, Robert S. Litt, plus NSA general counsel Rajesh De. Their testimony ought to raise eyebrows.

Robert Litt here added to his growing reputation as an apparatchik. Referring to PCLOB’s recommendation in its January report that the Foreign Intelligence Surveillance Court (FISC) be required to approve each NSA use of its dragnet-gathered data, Mr. Litt did two things. First, he admitted that the number of NSA uses of the data was far greater than previously thought. Second, he asserted that “the operational burden” of requiring the FISC to make those judgments would be excessive. The judges, Litt declared, “would be extremely unhappy if they were required to approve every such query.”

Translation: the system should operate for the convenience of the judges (and of the NSA) rather than for the protection of the public’s civil and privacy rights, which, of course, was the purpose for which the Court was created.

The arrogance here is breathtaking.

As for Mr. De, he told PCLOB that an NSA rule previously touted as protecting Americans–that agency personnel must be at least 51 percent confident their target is a foreigner–is a myth. It does not exist. Rather, determinations are made based upon the “totality” of the circumstances. In effect this means that the NSA, which is dealing with anonymous phone numbers, is freed from employing any objective criteria whatever.

No doubt there will be more here too.