Further Details On The Foreign Spying The NSA Is/Isn't/Is Doing And How Much The Administration Knows/Doesn't Know/Knows

from the rhetoric-fight! dept

In only a handful of days, the usual leak-and-denial progression of the Snowden leaks has completely disintegrated. The pattern was comforting in its own way, but the battle lines are now in a state of flux.

More allegations about overseas spying surfaced. James Clapper issued a non-denial denial about the harvesting of phone data in France that attacked a claim no one was making ("recorded phone data?"). This was swiftly followed by identical claims involving phone data from Spain and Italy. More phone data, more NSA surveillance.

The bombshell, however, was the news that German Chancellor Merkel's phone had been tapped by the NSA for over a decade. This news inspired the NSA's unpaid PR flack, Dianne Feinstein, to express her outrage that powerful people might be on the receiving end of the NSA's unblinking eye. She threatened a "complete review" of the NSA's tactics. Or did she?

This news failed to derail Feinstein's push to codify the NSA's current practices, something that doesn't really go hand-in-hand with a "complete review." But even this vague promise from one of the NSA's staunchest defenders was enough to bring a few angry tears to the agency's eyes.

The tapping of Merkel's phone was first presented as, "This is the first I've heard of this!" by the president. He claimed to be unaware of this activity and Jay Carney sent out a detail-free apology to Merkel stating that the NSA was not currently surveilling her, nor would it be in the future. Of course, it had enjoyed an 11-year run without interruption, so the loss of this single intercept isn't much of a problem. It still has 35 other foreign officials on (literal) tap.

But the sting of Feinstein's sudden disapproval, combined with Obama's claims of ignorance prompted agency heads to fire back. First, they claimed Obama had known about the surveillance since 2010. Then the claim was walked back, with the NSA stating this information hadn't been forwarded to the President.

Then the administration, now engaged in multiple diplomatic battles, did something unexpected: it joined Feinstein in selling the agency out. Its defense of the agency had definitely been cooling over the past several weeks, but the NSA couldn't have expected to hear the President ask for "additional constraints" on its surveillance programs.

Slapped twice, the NSA retracted its retraction and swung back at the administration it felt had cut the agency adrift.

The White House and State Department signed off on surveillance targeting phone conversations of friendly foreign leaders, current and former U.S. intelligence officials said Monday, pushing back against assertions that President Obama and his aides were unaware of the high-level eavesdropping.

Now, everyone's culpable. There are no "good guys" in this scenario. The administration attempted to slip out the back door unnoticed while the NSA defended the foreign surveillance it swore it wasn't doing, but the spooks had someone waiting in the alley. Having dragged the President and his staff down to its level, the NSA set about doing the same to its many accusers. All those collections of foreign phone data? "Not us."

U.S. officials said the Snowden-provided documents had been misinterpreted and actually show phone records that were collected by French and Spanish intelligence agencies, and then shared with the NSA, according to officials briefed on those discussions.

As was suspected, these nations' own intelligence agencies and telcos were gathering data and passing it on to the NSA. The intelligence agency was technically correct (the best kind of "correct"). It wasn't directly harvesting data. But it acquired the data nonetheless. It went even further in its denials, claiming that what was gathered wasn't even all that intrusive.

Based on an analysis of the document, the U.S. concluded that the phone records the French had collected were actually from outside of France, and then were shared with the U.S. The data don't show that the French spied on their own people inside France.

U.S. intelligence officials haven't seen the documents cited by El Mundo but the data appear to come from similar information the NSA obtained from Spanish intelligence agencies documenting their collection efforts abroad, officials said.

By stating the information dealt with non-domestic calls, the called-out intelligence agencies likely breathed a (short-lived) sigh of relief at not having been accused of anything approaching the NSA's level of domestic surveillance.

But even this illusion may not hold for long. During Mike Rogers' half-tantrum, half-circle jerk "intelligence hearing," Gen. Alexander coughed up some interesting answers in response to Rogers' lobbed softballs and smug "hmmms". If you can weave your way through Alexander's semantic smokescreen, the NSA head admits that not only is the NSA gathering European phone records directly but it (along with local intelligence agencies) is targeting wholly domestic communications. Marcy Wheeler at emptywheel breaks it down.

Rogers starts by asking Alexander to elaborate, specifically with regards to the US and NSA (he may be invoking the WSJ story, but he doesn't say so).

Rogers: And to that end, if I can, Mr. Alexander, there was some reporting that the story about French citizens being spied on by a particular slide that was leaked on a slide deck concluded that French citizens were being spied on. Can you expound on that a little bit? By the United States, by the way, specifically the National Security Agency.

Reading from a document of some sort, Alexander repeats the gimmick Clapper used last week, suggesting that the reports said the NSA had collected phone calls (content), then "corrects" their report to say Boundless Informant actually tracks metadata (which is actually what the reports had said).

Alexander: Chairman, the assertions by reporters in France, Le Monde, Spain, El Mundo, and Italy, L'Espresso, that NSA collected tens of millions of phone calls are completely false. They cite as evidence screen shots of the results of a web tool used for data management purposes but both they and the person who stole the classified data did not understand what they were looking at. The web tool counts metadata records from around the world and displays the totals in several different formats. [my emphasis]

Alexander then adds to last week's gimmick of claiming the Europeans reported these as calls, not metadata, by denying we, alone, collected this data.

The sources of the metadata include data legally collected by NSA under its various authorities as well as data provided to NSA by foreign partners. To be perfectly clear, this is not information that we collected on European citizens. It represents information that we and our NATO allies have collected in defense of our countries and in support of military operations.

This is not information "we" collected (on European citizens, but I'll come back to that), it's data "collected by NSA … as well as data provided … by foreign partners." It's data "we and our NATO allies have collected."

Those conjunctions — "as well as" … "and" — which in Alexander's written statement make it clear that both the Europeans and US collect this intelligence, disappeared from much of the reporting on this.

Wheeler goes on to explain how Rogers conversationally leads Alexander to assert a defense against any future accusations about spying on foreign individuals, or any nation's attempts to spy on their own citizens. Rogers makes the point that anyone could use undersea cables, etc. -- not just citizens of Country X. He also says that Country X could have citizens from Country Y living within its borders. While all of this is undoubtedly true, Rogers is basically giving Alexander all the rationale he needs to justify the NSA directly collecting data from foreign countries as well as giving local intelligence agencies the justification for domestic spying.

Rogers: Hmm. And so, let me just ask you this. If, as you study the networks of the world, let's just talk about the European Union for a second if I may. Is it possible for Chinese intelligence services, military or otherwise, to use networks that you would find in any nation-states of the European Union?

Alexander: Absolutely, Chairman.

Rogers: How about Russian intelligence services? Is it possible that they could use networks–communication networks, computer networks–inside the European Union for what they're up to?

Alexander: Absolutely, Chairman.

Rogers: How about al Qaeda? Would they use, could they use, is it possible for them to use the networks found in the European Union to conduct planning, operations, or execution of operations?

Alexander: They could, absolutely, Chairman. [my emphasis]

As it stands right now, the NSA has come out of the last batch of leaks related to foreign surveillance relatively unscathed. But the key is "relatively." At best, it comes out looking no better than the administration or its counterparts in foreign countries. Details have emerged indicating both Spain and France have gathered data and turned it over to the NSA, but French intelligence maintains it never gathered or turned over 70 million phone records in one month, perhaps suggesting there are parallel operations running here.

So, without touching the very latest leak, here's what we know/don't know.

The NSA did/did not/sort of did/still does/will-with-varying-amounts-of-cooperation collect millions of phone records overseas, phone records which did/did not involve wholly domestic communications and were/were not gathered solely by foreign intelligence agencies.

The NSA DID intercept world officials' communications, something the administration was/wasn't/was aware of. This has been condemned by the administration and intelligence leaders, which shows exactly what an intelligence agency has to do to lose top level support: anger the wrong people and, more importantly, get caught.

The NSA is now fully engaged in its own defense. Losing support it assumed was guaranteed has forced it to start playing dirty. With the administration swiftly extracting itself from this codependent relationship and an angered (but for all the wrong reasons) Sen. Feinstein targeting any number of surveillance programs, the NSA can no longer rely on rehashing talking points and staying above the fray. This will get nastier as it goes on, and that's wonderful. Any opponent of the NSA's programs has to be thrilled to see the agency left to fend for itself. Anyone who enjoys watching government entities forced to confront their own bad decisions has to be thrilled as well. It looks like the NSA is beginning to feel that if it can't have any secrets, neither can anyone else it "answers" to.

Filed Under: blame, james clapper, nsa, nsa surveillance