Every Time The NSA Is Asked About Its Ability To Spy On Everyone... It Answers About Its Authority

from the nsa-beats-terrorism-by-forbidding-unauthorized-terrorist-activity! dept

Wed, Aug 7th 2013 8:55am — Tim Cushing

One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we've discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they've hit those walls, they've been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.

NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it's all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.

Slate's Ryan Gallagher has a post taking Michael Hayden, former director of the NSA and CIA, to task for statements he made supporting X-KEYSCORE shortly after the Guardian released the leaked documents.

Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it's really good news.”

Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that's been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.

Hayden's enthusiasm for expanded haystack construction notwithstanding, there's more to this interview than just the former boss applauding the work of his successors. The interview, conducted by Erin Burnett of CNN, presses a question NSA supporters like Hayden (and Gen. Alexander) have been dodging since day one. Namely: does the NSA have the ability to spy on Americans' phone calls, emails and internet usage in real time?

The interview runs just over 8 minutes, but by the end of it you'll be sick of a couple of phrases Hayden repeats ad absurdum -- "lawfully collected" and "authority."

Before getting to the X-KEYSCORE questions, Burnett runs a clip of Gen. Alexander being lobbed softballs by Sen. Mike Rogers back on June 18th. Note Alexander's verbal head fake that makes it appear he has actually answered what was asked.

Rogers: Does the NSA have the ability to listen to American's phone calls and read their emails?

Alexander: No. We do not have that authority.

That wasn't what was asked. Without a doubt, the agency does not have the authority to perform these acts. But what was asked was if the agency had the ability, whether or not it was being utilized.

When Burnett presses Hayden on this point, he provides the same dodge. She asks if the NSA has the ability to collect this kind of data and Hayden responds by saying the NSA can utilize this data, but only after it's been lawfully collected.

When she pushes further, asking what's stopping the NSA from "collecting whatever the heck you want on whoever the heck you want," Hayden goes right back to claiming NSA analysts are only authorized to query the data that's been already lawfully collected. The question about ability continues to be danced around.

Hayden even reiterates Alexander's pseudo-answer:

"General Alexander made it clear: we don't have the authorization to do that."

Then he goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful. Hayden cannot possibly believe this statement is true. Sure, some analysts might reject legally-dubious requests from superiors but there is no way this is true across the board.

Hayden's continual reference to "lawfully collected" and "authorization" (along with the usual mentions of "oversight" and "checks and balances") is nothing short of ridiculous. It's as if he wants everyone to believe that because analysts aren't "authorized" to perform certain actions, they simply won't perform them. In Hayden's bizarrely credulous narrative, laws prevent lawbreaking.

Over and over again, he stresses the point that the data has been "lawfully collected" and that the NSA is only "authorized" to perform certain actions with the collected data. His ultra-simplistic responses are almost laughable. Of course an analyst wouldn't perform real-time data monitoring! It's not permitted!

If Hayden's narrative holds true, then we need to be asking ourselves why criminal activity of any kind occurs. After all, the laws are in place and people who know what's illegal and what isn't simply won't perform illegal activities. The alternative is to assume Hayden believes intelligence agency employees are sinless wonders above reproach, who have never abused their position or power. But nothing about the agency's past bears that out.

NSA officials have repeatedly lied to Congress. Rather than simply claim something is classified or can't be discussed publicly, they dance around straightforward questions, offering up "least untruthful" answers.

NSA analysts have abused their power. Multiple times. The agency has illegally spied on journalists, broken wiretapping laws, viewed President Clinton's emails and recorded calls from American soldiers back to America, passing around tapes of ones containing "phone sex" or "pillow talk." That's just a few instances that we KNOW about. To pretend the abuse is limited to the events revealed by whistleblowers is the height of condescension. To make the assertion that NSA analysts will only act within the limits of laws (not that much is limited) is downright insulting.

Sure, Hayden may be projecting an idealized version of the agency solely for the purpose of answering these questions, but the continual dodging of the "ability" query simply raises more questions. Nothing about this Q&A inspires trust, considering it relies on meaningless terms like "lawful," "oversight" and "collected," the latter term seemingly completely resistant to definition.

Hayden's mantra of "We don't because we're not authorized" veers into self-parody by the end of the interview, presenting the former NSA head as an automaton among ~~men~~ spies. The rationale doesn't pass the laugh test. Laws prevent lawlessness? Ridiculous. At best, they deter it and only then with sufficient consequences and enforcement. An agency that seemingly has answered to no one for most of its existence shouldn't be entrusted with a checking account, much less the constitutional rights of Americans.

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Filed Under: ability, authority, keith alexander, legality, michael hayden, nsa, nsa surveillance

33 Comments

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BentFranklin (profile), 7 Aug 2013 @ 7:19am

I don't understand this article. Alexander's first word was "No". He may have been lying but he did answer the question.
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rw (profile), 7 Aug 2013 @ 8:24am

Re:
But then he added the qualifier.
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SolkeshNaranek (profile), 7 Aug 2013 @ 9:10am

NSA spokespersons
It is very easy to tell when the NSA people are telling lies.

Their lips are moving.
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Skeptical Cynic (profile), 7 Aug 2013 @ 9:14am

Re: Re:
And in all cases with the letter agencies the qualifiers are the more important information.

It's like saying when asked did you murder this person. And you did but you answer this way.

No (with nothing else) means one thing and with a qualifier...

No, I committed justifiable homicide.

Means a completely different thing.
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Anonymous Coward, 7 Aug 2013 @ 9:19am

Much Ado about nothing
Obviously Edward Snowden didn't actually leak any classified information about the NSA's programs. He wasn't "authorized" to do so, therefore, according to NSA logic, he couldn't have done so.
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Anonymous Coward, 7 Aug 2013 @ 9:22am

Hayden doesn't want analysts using moral judgement
Then [Hayden] goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful.

I've never heard a more inconsistent spokesman. This is the same Hayden who recently criticized Snowden with these words:

What kind of sense of moral superiority does it take, to feel like your moral judgment trumps the moral judgment of not one but two Presidents, both houses of Congress, and bipartisan majorities, the American court system, and 35,000 of your coworkers at the NSA?

Which is it, Hayden? Should analysts be making calls about the legality of requests, or should they blindly trust the judgment of others?
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Loki, 7 Aug 2013 @ 9:29am

So I am expected to believe that underlings of people who routinely lie and deceive people would never actually do anything deceptive or dishonest themselves?

I don't know what is scarier, that these guys think people are stupid enough to actually believe this nonsense, or that a fair amount of people really are this stupid.
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Anonymous Coward, 7 Aug 2013 @ 9:32am

Re: Hayden doesn't want analysts using moral judgement
I must say, I'm unimpressed by the line about moral judgements of presidents and congress. Even assuming that those entities are immune to temptation, garbage in/garbage out still applies, and the NSA has demonstrated that it's been providing plenty of garbage in.
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That One Guy (profile), 7 Aug 2013 @ 9:33am

Just once...
I'd love to see the person asking the questions refuse to move on until they answered the question with a yes or no, and call them out on their dodge.

NSA rep:'...we absolutely do not have the authority to do that.'
Interviewer: 'That's nice, but I asked about your ability to do that, not your authority. As you employ human beings, with all that entails, 'authority' only matters until one of them decides to break the rules, for whatever reason, an action that has happened before, and will happen as long as the ability to do so exists. So I ask you again, do you have the ability to do so?'
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Michael, 7 Aug 2013 @ 9:40am

Thank goodness the NSA hires only analysts with law degrees so they can figure out which requests sent to them are unlawful.
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Capt ICE Enforcer, 7 Aug 2013 @ 9:41am

Real time loop hole
The NSA can't listen to all communications real time or even a single conversation real time. The reason for this truthful statement is that it takes milliseconds for the information to travel from sender to the NSA. Hence they can't listen to the conversations real time. You can trust me, the government does. Special note to the NSA. Please don't raid me.
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Anonymous Coward, 7 Aug 2013 @ 9:55am

Re: Just once...
I was thinking the exact same thing.

But, mainstream press will only go so far in pushing for a non-dodge answer before giving up and moving on, essentially letting them off the hook. Most everyone watching the interview are left with an incomplete and oftentimes incorrect picture of what is going on unless they were paying very close attention to the dodge answer that took place (ie., the difference between ability and authority).
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wec, 7 Aug 2013 @ 9:55am

How can the American know what NSA doing is Constitutional, since nobody can get a case before the Supreme Court.

What happens to all that data if the Supreme Court should rule that what NSA did was un-Constitutional?

If there were cases relying on this un-Constitutional data are they now null and void?
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Bj�rn Althoff, 7 Aug 2013 @ 10:45am

Well, I am sure as hell not authorized to look at my girlfriends sms..
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R.H. (profile), 7 Aug 2013 @ 10:46am

Re: Real time loop hole
Don't give them any new ideas! Next thing we know, they'll be saying that since it takes time for the sound to travel from your mouth to the guy listening at your door, that they're not spying in 'real time'.
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Noud Ligra (profile), 7 Aug 2013 @ 10:52am

Well actually, the NSA doesn't really spy much domestically, since their sphere of operations is primarily overseas. They collect data, but the active domestic surveillance is mainly done by Homesec, the FBI, and even state law enforcement. It's more resource and tool sharing between intelligence agencies.
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Rich Fiscus (profile), 7 Aug 2013 @ 11:13am

It's funny how he thinks he can tell people what they have to assume, as if we don't have a choice but to march in lock step with the government's chosen narrrative.

The only thing I need to assume is that dodging questions indicated a lie by ommission.
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Anonymous Coward, 7 Aug 2013 @ 11:36am

The more they talk...
"Then he goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful."

I wonder if there's any data that supports the number of times an analyst has rejected a request like this. I'd love to know what would happen to an analyst who exercises his moral judgement and refuses. Would the person making the unlawful request just drop the request? Or would they simply drop the analyst?

/rhetorical question - we already know he's full of shit
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Anonymous Coward, 7 Aug 2013 @ 1:30pm

The data isn't being lawfully collected. The data is being unlawfully seized, and later, unlawfully searched. The United States Constitution, which is the high law of this land, explicitly states so.
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Bat Guano, 7 Aug 2013 @ 1:45pm

Here's a great quote from Dr. Strangelove on the topic of "ability" versus "authority":

http://www.imdb.com/title/tt0057012/quotes

President Merkin Muffley: General Turgidson, I find this very difficult to understand. I was under the impression that I was the only one in authority to order the use of nuclear weapons.

General "Buck" Turgidson: That's right, sir, you are the only person authorized to do so. And although I, uh, hate to judge before all the facts are in, it's beginning to look like, uh, General Ripper exceeded his authority.
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Lurker Keith, 7 Aug 2013 @ 3:15pm

Re:
How can the American know what NSA doing is Constitutional, since nobody can get a case before the Supreme Court.
We know because the legal definition of "reasonable" relies on a consensus by the population. The 4th Amendment deals w/ what the average American believes is a "reasonable search/ seizure". Blanket surveillance is clearly unreasonable (specifically the gathering of data that does NOT pertain to an investigation is clearly an unreasonable seizure), especially since it didn't stop the Boston terror attack (which proves it doesn't work).

What happens to all that data if the Supreme Court should rule that what NSA did was un-Constitutional?
It should be destroyed, but we can't trust that will happen w/o it being documented by trusted IT (since they are knowledgeable to understand what's being done) people watching to make sure.

If there were cases relying on this un-Constitutional data are they now null and void?
Yes, anything that relied on something that it Unconstitutional is null & void. If a terrorist was locked up, & something that was obtained Unconstitutionally was the only proof, he could go free.
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Lurker Keith, 7 Aug 2013 @ 3:20pm

Re: Re:
Grr...

relied on something that is* Unconstitutional
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Anonymous Coward, 7 Aug 2013 @ 5:57pm

Re: Hayden doesn't want analysts using moral judgement
"What kind of sense of moral superiority does it take, to feel like your moral judgment trumps the moral judgment of not one but two Presidents, both houses of Congress, and bipartisan majorities, the American court system, and 35,000 of your coworkers at the NSA?"

Sure does sound like bandwagon fallacy from a man in office.
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alternatives(), 7 Aug 2013 @ 6:04pm

They have the authority
Because the authority in these cases comes from the barrel of a gun.

Look at what happens when you stand up to the "authority".
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Anonymous Coward, 7 Aug 2013 @ 7:11pm

Re:
Yes. That is the most false statement I have ever seen.

So by that logic I agreed with you?
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Jeffrey, 7 Aug 2013 @ 7:32pm

They have the ability. YOU have the ability. They are not allowed by authority to perform the tasks you ask them.

Understand what you are asking the NSA and their answers won't confuse you. If they have a program to do it, you can make one in your basement with some friends that can stop it.

OPEN. YOUR. EYES.
NOT. YOUR. MOUTH.
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Allen (profile), 7 Aug 2013 @ 10:53pm

Makes me think of A Few Good Men. Same self justification of sacrificing fundamental principles to a 'greater good', and of course "the Truth? You can't handle the damn Truth!"

Sadly by the time enough is known about these days for the movie dramatisation, Jack (and probably the rest of us) will have left this flawed existence and moved on.
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Digger, 7 Aug 2013 @ 11:34pm

Asshat keeps dropping words
We don't "admit to" collect"ing" it, we're not authorized.
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btrussell (profile), 8 Aug 2013 @ 2:44am

"As we've discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they've hit those walls, they've been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal."

We need to quit saying it is legal. Granting an exception does not make an action legal.

If a police officer sees me jaywalking and decides not to charge me, it does not make my jaywalk legal, it just means I am being let away with it.
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Anonymous Coward, 8 Aug 2013 @ 7:12am

Infra Red Switches
Back doors through your monitor cable
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JubaTheSniper, 8 Aug 2013 @ 7:29am

Re:
Missing from the article was WHY the responses were phrased that way. NSA has outsourced the collection process in order to isolate themselves from legals issues.
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Forwhatitswurth, 8 Aug 2013 @ 1:23pm

Little snowden is just trying to regain his heroic status with america, in any way possible. It is hard to trust a man that has given secrets and procedures away to our enemies. I side the intel committee people. heres their take:

Statement from HPSCI Chairman Mike Rogers � Reax to NYT Article by Charlie Savage

�The House Intelligence Committee is fully informed of the NSA�s collections programs and through intensive oversight ensures that all of its programs are conducted consistent with the law. The article portrays the program in an inaccurate light and is very misleading in its description as to how these programs operate.�
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Alex Cardo, 11 Feb 2014 @ 8:33am

Recording Future
I had the opportunity to test one of these algorithms. This algorithm is called "Recorded Future" https://www.recordedfuture.com/.

I can say that this public concept showed me that there are more serious government spy technology on the Internet.

If such technologies as "recorded future" available for public beta testing, what the government is developing a technology in secret bunkers?
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