How The Rule Of Law Is Actually Undermining Human Rights

Executive Order 12333 Documents Redefine 'Collection,' Authorize Majority Of Dragnet Surveillance Programs

from the also:-no-oversight dept

Mon, Sep 29th 2014 3:51pm — Tim Cushing

Issued in 1981, updated in 1991 (to consolidate power, basically) and continuously expanded (mostly unofficially) since 2001, Executive Order 12333 (EO 12333) is what grants surveillance powers to our nation's intelligence agencies.

Foreshadowing the severe twisting of the English language that follows (see also: NSA-to-English dictionary), the opening paragraphs note that what certain wording sounds like isn't actually what it means. [pdf link]

In spite of the constraining appearance of all the requirements, under E.O. 12333, DoD Directive 5240 .IR, and DIAR 60-4, intelligence activities conducted by the DHS currently have much more latitude and potential for effectiveness than they have had for quite some time.

Looks like "constraints" but in practice is hardly anything at all.

Covert and clandestine operations ("Special Activities") -- normally limited to the CIA -- are now something any agency can participate in, if given permission to.

The meaning of the proscription is not that intelligence components are prohibited from conducting all Special Activities; rather, that such activities must be directed by the President and approved by the Secretary of Defense and the respective Service Secretary.

Going on from there, we see the first public instance of the government's redefinition of the word "collection."

Procedure 2 introduces the reader of DoD 5240.1-R to his or her first entry into the "maze" of the regulation. To begin the journey, it is necessary to stop first and adjust your vocabulary. The terms and words used in DoD 5240.1-R have very specific meanings, and it is often the case that one can be led astray by relying on the generic or commonly understood definition of a particular word.

For example, "collection of information" is defined in the Dictionary of the United States Army Terms (AR 31011 25) as: The process of gathering information for all available sources and agencies. But, for the purposes of DoD 5240.1-R, information is "collected" -... only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties ... (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information.

"Collection" is now defined as "collection plus action," rather than the way it's been defined for hundreds of years. "Information held" is not a "collection," according to this document. It still isn't collected, even if its been gathered, packaged and sent to a "supervisory authority." No collection happens until examination. It's Schroedinger's data, neither collected nor uncollected until the "box" has been opened. This leads to the question of aging off collected data/communications: if certain (non) collections haven't been examined at the end of the 5-year storage limit, are they allowed to be retained simply because they haven't officially been collected yet? Does the timer start when the "box" is opened or when the "box" is filled?

Also of note: "incidental" collections are not collections if utilizing the same mental gymnastics.

If the information is not essential to the mission of the component and it does not fit into one of those categories, then that information may not be collected. However, you will recall from our discussion in paragraph 3 -7 that "collection" means receiving plus an affirmative act to use or retain the information. Therefore, mere receipt of non-essential information does not constitute a violation of DoD 5240.1-R.

More redefining is done here:

Once again, we must cautiously examine the vocabulary used in DoD 5240.1-R. The term "retention" means more than merely retaining information in files - it is retention plus retrievability. As stated in DoD 5240.1-R -... the term retention as used in this procedure, refers only to the maintenance of information about United States persons which can be retrieved by reference to the person's name or other identifying data.

Somewhat more positively, this section instructs analysts to a very limited view of "retrievability" and err on the side of "purging" information on US persons that cannot legally be retrieved, even if it was legally "collected" (using the DoD's expanded definition). It does, however, hedge by noting information "necessary to ongoing missions" should be retained.

The document goes on to applaud the FISA court for being instrumental in protecting citizens' rights… apparently by eliminating legal barriers to domestic surveillance.

The [Senate Select] Committee has reviewed the five years of experience with FISA and finds that the Act has achieved its principal objectives. Legal uncertainties that had previously inhibited legitimate electronic surveillance were resolved, and the result was enhancement of U.S. intelligence capabilities. At the same time, the Act has contributed directly to the protection of the constitutional rights and privacy interests of U.S. persons.

There's a lot of information in there, very little of it redacted, but until the ACLU liberated it, completely withheld from the public. The question is, why? Despite the many paragraphs given over to rewriting the English language to better suit intelligence agencies' aims, there's also a lot of very blunt statements made about the balance between the government's counterterrorism efforts and the rights of US citizens.

The ACLU highlights this particular section in its write up of the released documents.

This area of DoD intelligence activities, that is, the use of special collection techniques, is the area in which there tends to be the greatest amount of confusion regarding the limitations on permissible activities. Because of this confusion, this area also tends to be the most fertile ground for both abuse and unnecessarily restrictive interpretation of the rules. To be sure, it is fundamental that abuse of the legitimate DoD intelligence and counterintelligence resources and authority must be avoided. The rights of US persons must also be protected, and no intrusion into these protected areas is permissible without first meeting constitutional standards, and then only through a system of careful scrutiny of the intruding apparatus.

This is spelled out more explicitly later, reminding those entering the intelligence world that the job is necessarily difficult -- a fact many of those in the intelligence and law enforcement fields forget all too quickly.

The system is complex, but it is not impossible. Its underlying structure is designed to balance the legitimate needs of the government with the rights of the individual. Given those constraints, one could not expect a system to exist which did not inherently contain adequate checks, balances, and oversight procedures.

This is miles away from the DOJ's statements that cell phone search warrant requirements make it too difficult to capture criminals, a refrain now being echoed by law enforcement agencies in response to automatic encryption on iPhones and Android devices.

These are the limits these entities must adhere to. These are built-in as a check against government power. But these rights are not a one-way street solely favoring the American public. The DIA guidebook discusses what the intelligence community and the administration have refused to: and it does it in plain, straightforward language.

Nevertheless, we must be mindful of too much caution. We must remember that we are engaged in a real-world mission that involves unprincipled adversaries, and a plethora of sophisticated technical collection and counter-collection enterprises and devices. Terrorism and have destruction as their common denominator, and we are fueling their malignancy when we unnecessarily restrain or restrict our foreign intelligence or counterintelligence efforts, just the same as we would damage the fiber of our democracy through abusive use of our own capabilities and powers.

Our business is one that involves constant vigilance and omnipresent balancing of competing interests. To survive, we must take risks. To succeed, we must minimize those risks. To preserve our precious ideals, we must carefully pursue our crafts in such a manner as to not offer up the rights and dignity of our citizens in exchange for that success.

As the ACLU points out, this frank discussion of the tension between the two is a far cry from the usual "dissembling and obfuscation" the government has provided so far in its tepid responses to leaked documents. This willingness to discuss the balance in real terms may be part of the reasons a lawsuit was needed to free the document.

The other, larger issue, is that this order may be the main justification for most of the NSA's surveillance and data dragnets -- an order not subject to any form of oversight.

Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts. That's why uncovering the government's secret interpretations of the order is so important. We've already seen that the NSA has taken a "collect it all" mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.

For all of the tough talk about respecting the public's rights, a vast amount of surveillance occurs under this order. In the document, any questions about overriding civil liberties concerns are directed towards members of the Executive branch, rather than to anywhere that might act as a check against its powers -- like courts or the legislative branch. In fact, the legislative branch has done nothing but expand its powers of the last 30+ years. So, new analysts might hear plenty about the importance of respecting civil liberties, but they'll find that in practice, those words -- like "retention" and "collection" mean next to nothing.

Intelligence Law Handbook Defense HUMINT Service (PDF)Intelligence Law Handbook Defense HUMINT Service (Text)

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Filed Under: collections, definitions, dragnet, eo 12333, executive order 12333, nsa, privacy, surveillance

24 Comments

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Trevor, 29 Sep 2014 @ 4:06pm

"The rights of US persons must also be protected, and no intrusion into these protected areas is permissible without first meeting constitutional standards, and then only through a system of careful scrutiny of the intruding apparatus."

"Constitutional Standards is later defined to mean the Constitution in the form that it hypothetically exists in the novel 1984."
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Anonymous Coward, 29 Sep 2014 @ 4:16pm

Think the media will start using the term "gathering" instead of "collecting" when they interview Government officials since that is what they are doing (according to them)?
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That One Guy (profile), 29 Sep 2014 @ 4:30pm

NewSpeak for dummies
When the document starts by 'explaining' that numerous words and phrases mean something entirely different than any reasonable person would expect them to, it really doesn't matter how much they might emphasize 'the balance between the government and the public', because at that point they're already stacking the deck in their favor.

As an example, compare this line:

Because of this confusion, this area also tends to be the most fertile ground for both abuse and unnecessarily restrictive interpretation of the rules.

Alongside this one:

Legal uncertainties that had previously inhibited legitimate electronic surveillance were resolved, and the result was enhancement of U.S. intelligence capabilities.

If you're starting from the point of view that whatever you do is 'necessary' then any 'legal uncertainties'(otherwise known as 'laws explicitly prohibiting your actions') are going to be seen as 'unnecessary', and deserving of being removed. That's 'balance' in the same way that 'Give me your money or I'll blow your head off' is 'striking a balance between the needs of a mugger and his victim'. Only one side is being considered, not both.

Finally...

At the same time, the Act has contributed directly to the protection of the constitutional rights and privacy interests of U.S. persons.

Whoever wrote that has one hell of a twisted sense of humor, has completely bought into the lies they tell the poor saps working for them, or is absolutely incapable of rational thought and critical thinking, because it's pretty damn clear that 'protecting the constitutional rights and privacy interests of U.S. persons' is the last consideration to any of the spy agencies or those that support them.
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Hans, 29 Sep 2014 @ 4:53pm

Oversight, my ass
Remember this the next time one of their mouthpieces tells us it's all done with Congressional oversight.
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That Anonymous Coward (profile), 29 Sep 2014 @ 5:01pm

And waiting for the spin to justify this in 3...2...1...

'Merkia - It sounds much better in theory, 'Land of the Free, Home of the Brave'.
We are less free today than citizens under the thumb of dictators.
We are so brave, we drop our pants to get on a plane because they told us to be scared.

The rights that make our nation great have been revoked, but no one bothered to tell us. Perhaps we need to revoke their right to govern us and keep revoking their leadership until they put an end to this.
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Anonymous Coward, 29 Sep 2014 @ 5:04pm

Re: NewSpeak for dummies
...it's pretty damn clear that 'protecting the constitutional rights and privacy interests of U.S. persons' is the last consideration to any of the spy agencies or those that support them.

It's the same logic for cops when they beat your for your own protection. "Hold still while I beat you, sir. You're a danger to yourself...And so am I!"
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Anonymous Anonymous Coward, 29 Sep 2014 @ 5:36pm

Warrants
If they have a lead (aka probable cause), then I still do not understand why they cannot just ask for a warrant, in a regular court. If they don't have a lead, then why all the bother?

The current method is not producing results.

Of course, there would have to be actual issues for the warrant to be issued, and there have yet to be any of those.

Also, what is the provenance of allowing these Executive Orders, and what are the limitations? If there are no limitations, it seems a severe error by the constitution creators. "Congress shall make no law", so the Executive can?
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Anonymous Coward, 29 Sep 2014 @ 7:46pm

Re: Warrants
Also, what is the provenance of allowing these Executive Orders, and what are the limitations? If there are no limitations, it seems a severe error by the constitution creators. "Congress shall make no law", so the Executive can?

They stopped following the constitution a long time ago in a galaxy far far away
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Anonymous Coward, 29 Sep 2014 @ 7:49pm

There is no longer any point in pretending we will get our freedoms back any other way than by force.
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tqk (profile), 29 Sep 2014 @ 8:42pm

needs of the gov't vs. individual rights
I may have managed to morph into an anarchist without noticing it. Either that, or I've read Orwell and retained it. I may be an enemy of the state now. Damn! This:
... designed to balance the legitimate needs of the government with the rights of the individual.

strikes me as fairly specious ("Presenting a pleasing appearance; pleasing in form or look; showy") these days, considering how little care governments have for the rights of individuals. Why in the world should I give a rat's ass about legitimate needs of the government when they ignore our rights as a matter of course? Because they're protecting me from "terrists" I know; but they're not! They're empire building is all, and anyone not seeing that for themselves is asleep (or worse). So you Murricans, what's it like to live in a fascist dictatorship? Havin' fun yet?

This is pretty difficult to read. It's almost like they expect you to believe this BS.
The rights of US persons must also be protected, and no intrusion into these protected areas is permissible without first meeting constitutional standards, and then only through a system of careful scrutiny of the intruding apparatus.

Wow, they even know about the Constitution!

Uh ... Huh. I'll see it when I believe it.
To preserve our precious ideals ...

Lip service.
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tomczerniawski, 29 Sep 2014 @ 9:26pm

Man, I can't wait to see CNN covering this.

I mean, CNN would be stupid not to cover something that affects every American alive, wouldn't they?
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Dvorjk, 30 Sep 2014 @ 12:25am

So if collection now means 'collection plus action', logically 'collection plus action' must mean 'collection plus action plus action' which means 'collection plus action plus action plus action' which means 'once we have your data we'll do whatever we damn well please'.
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That One Guy (profile), 30 Sep 2014 @ 6:10am

Re:
Going for funniest comment of the week are we?
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Anonymous Coward, 30 Sep 2014 @ 6:49am

Living in a cave now sounds rather comforting and tempting ,now i just need to find a cave.
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John Fenderson (profile), 30 Sep 2014 @ 7:12am

The funny thing is
This willingness to discuss the balance in real terms may be part of the reasons a lawsuit was needed to free the document.

Finding discussions like this is somewhat reassuring. Not that they make everything all better, but they at least demonstrate that these issues are being seriously considered and discussed -- something that we had no evidence of before. They would have been much better off, and the blow to credibility and trust would have been lessened, if they hadn't kept this stuff a secret.
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Anonymous Coward, 30 Sep 2014 @ 9:30am

So many "executive( read tyrannical) orders"

Here are some of the ones that have been granted to FEMA

EO #10997
seizure of all electric power, fuels, and minerals, public and private.

EO #10999
seizure of all transportation, including personal cars, trucks or vehicles of any kind and total control of the highways, seaports and waterways.

EO #11000
seizure of all American people for work forces under federal supervision.
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Anonymous Coward, 30 Sep 2014 @ 9:33am

Re:
sorry wanted to add, the FEMA that is currently building detention camps across America. Some might call them concentration camps. I am sure the homeless being forced into them in South Carolina would.

Must be nice to know such a benevolent power hungry group has the ability to enslave every American, and the added bonus of having detention camps already set up for many of them
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Anonymous Coward, 30 Sep 2014 @ 9:35am

Re: needs of the gov't vs. individual rights
Every person that reads sites like this automatically go on the enemy of the state list simply for dissenting against their government.

Because dissent is terrorism, only those that do not trust their leaders 100% must be bad people, right?
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art guerrilla (profile), 30 Sep 2014 @ 11:13am

Re:
power NEVER devolves voluntarily...
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art guerrilla (profile), 30 Sep 2014 @ 11:19am

Re: Re:
careful, now, you're gonna get issued a tin-foil beanie ! ! !

EVEN THOUGH The They (tm) HAVE been making mini-holding camps all over the place, and HAVE been buying up all the ammo in the fucking world...

i worked on the design for one (without knowing what it was until after the fact)... i was designing/drafting the metal buildings that had chainlink storage areas and security offices for the camps... didn't really think about it until some time after i did that job, but that is damn sure what they were...
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Anonymous Coward, 30 Sep 2014 @ 11:54am

Re: needs of the gov't vs. individual rights
Wow, they even know about the Constitution!
Which nicely demonstrates mens rea.
(they already admitted various actus reus when they insist these word games are somehow legal)
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Anonymous Coward, 30 Sep 2014 @ 1:00pm

Re: Re: Re:
There are FEMA camps in south Carolina being used to house homeless.

The homeless are guarded by barb wire fences and armed guards, if they want to leave they have to ask for permission and be given it.

Is it a stretch to call them detention camps if they have armed guards prison walls, and cannot leave if they want to?
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That One Guy (profile), 30 Sep 2014 @ 3:49pm

Re: Re: Re: Re:
If the only way they can leave is with 'permission' from the guards, armed guards at that(because clearly homeless people are a threat to all around them), then no, doesn't seem a stretch to call them that.
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Anonymous Coward, 30 Sep 2014 @ 5:49pm

Can't Congress explicitly forbid any money being spent on these programs? They do hold the purse strings...
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