Trump Administration Says It's Classified If They Can Let The NSA Spy On Americans
from the that's-not-how-this-is-supposed-to-work dept
Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate.
However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked:
Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?
This seems like a kind of important question. 702 on its face, says that it can't be used to target domestic communications. Literally, the law says this: "An acquisition authorized under [this statute]... may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."
But, as we've learned, when Senator Wyden asks an "is this happening?" question -- the answer is always "yes." And, once again, it appears that Coats is playing games. Coats responded to that question at the time saying: "Not to my knowledge. It would be against the law." That seems like a pretty clear and definitive answer: "no." Which is as it should be.
But then... something weird happened. The very next day, Coats' office put out a "clarifying" statement (ruh roh...), saying that Coats had "interpreted" Wyden's question to be referring specifically to Section 702(b)(4) (the part that says you can't spy on domestic communications). But, that's not what Wyden had asked. He had asked about the entirety of 702. So this "clarification" certainly seemed to suggest that Coats' original answer was incorrect in regards to the actual question, and instead, his staff was rewriting Wyden's question to make sure he had answered it accurately.
In other words, it appears that Coats put himself in a Clapper-position, of mistakenly claiming that the NSA isn't spying on Americans under a specific authority when it absolutely is -- and the reinterpretation of the question was his retroactive attempt to make his answer "truthy."
Not surprisingly, this didn't please Wyden, who quickly asked Coats to officially answer the original question with a yes or no, and not the reinterpreted question his office claimed he had answered.
Coats has now sent "an answer" but not a good one. He's now claiming that it's classified, and also takes some weird shots at Wyden for asking such a question in the first place:
Dear Senator Wyden:
In response to your letter of July 31, 2017, I would note that I responded to your question publicly both at the Senate Select Committee on Intelligence's open hearing on June 7, as well as in an unclassified letter to you on June 8. However, in further conversations with you and your staff, including at a closed budget hearing on June 15, it became clear that you already had the specific information that you were seeking, but this information was classified. In an effort to be responsive to you, I committed to assessing whether the sources and methods information you were asking for could be publicly released.
After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24. This response also discussed, at length, why the information is properly classified and cannot be publicly released.
I want to stress that the Intelligence Community takes seriously its obligation to faithfully execute collection under Section 702 consistent with the Constitution and statutory requirements. We also take seriously our obligation to ensure Congress has all the information - both publicly available and classified it needs to conduct oversight of this program. While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter.
Sincerely,
Daniel R. Coats
Now, for those of you thinking "okay, it makes sense that we can't reveal classified information that might harm national security," let me remind you of the question that Wyden asked:
Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?
Okay. So please explain how a simple yes or no answer to that can be classified -- especially given the plain language of the law itself? And, of course, this answer -- or, more specifically, the refusal to say "no" -- more or less confirms that the answer is a resounding "YES!" the government believes that it can use Section 702 to collect purely domestic communications, in clear contradiction to the plain language of the law.
Furthermore, if this question is so scary and so dangerous, why didn't anyone -- including Coats himself -- have any problem answering it when it was initially posed back in June? It didn't seem like such a risk to national security then. It's only a risk to national security after Coats' staff realized he misspoke? How, exactly, does that work?
As you might imagine, Senator Wyden is not pleased with this turn of events:
It is hard to view Director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?
What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question.
I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security.
The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?
This is on top of the administration's recent refusal even to estimate how many Americans’ communications are swept up under this program.
The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don't deserve to know when and how the government watches them.
So, uh, who in the NSA is going to play the role of Snowden this time? Once again, it appears we have a Director of National Intelligence claiming no surveillance on Americans under a specific authority, when everything that Wyden is saying indicates that he damn well knows that's not true. Sooner or later someone's going to leak the fact that the intelligence community is lying to the American public in order to spy on the American public.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: dan coats, domestic surveillance, privacy, ron wyden, section 702
Reader Comments
Subscribe: RSS
View by: Time | Thread
And the Internet responded...
...srsly?
[ link to this | view in chronology ]
Re: And the Internet responded...
This is about a shining example of the same sort - ask a question about 702 and "get an answer" that applies to a subsection of 702 that wasn't in question.
It's SOP for governments.
[ link to this | view in chronology ]
Classified?
How is answering a question about the law (a publicly published law no less), and an agency's relationship to that law, classified?
Some of the proceedings in the FISA court may be classified, but even they have to follow the law.
[ link to this | view in chronology ]
Re: Classified?
[ link to this | view in chronology ]
Re: Re: Classified?
[ link to this | view in chronology ]
Re: Re: Re: Classified?
[ link to this | view in chronology ]
Re: Classified?
Welll.... not in THEIR view... First is National Security, then comes the Laws of the Land THEN the Constution.
The appropriate order is the reverse.
[ link to this | view in chronology ]
Re: Classified?
How is answering a question about the law (a publicly published law no less), and an agency's relationship to that law, classified?
First guess: If they have an 'interpretation' along the lines of 'Yeah, so despite the law saying you cannot do X, you can totally do X', completely nullifying the legal limits, and that is what they want to hide by claiming 'National Security!'
Some of the proceedings in the FISA court may be classified, but even they have to follow the law.
Well, theoretically anyway...
[ link to this | view in chronology ]
well if he can answer 702(b)(4)...
Can the government use FISA Act Section 702(b)(1) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(2) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(3) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(4) to collect communications it knows are entirely domestic?
Might take a while, but hey... if you are going to play the game...
[ link to this | view in chronology ]
well if he can answer 702(b)(4)...
Can the government use FISA Act Section 702(b)(1) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(2) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(3) to collect communications it knows are entirely domestic?
Can the government use FISA Act Section 702(b)(4) to collect communications it knows are entirely domestic?
Might take a while, but hey... if you are going to play the game...
[ link to this | view in chronology ]
I trust Wyden, he has been proven right multiple times before. I do not trust anybody in the Executive branch, it has been caught lying multiple times before.
[ link to this | view in chronology ]
Re:
"Multiple times" sounds strange to me. It's like "the sun has been caught being hot multiple times". With regard to NSA surveillance, there haven't been "multiple times" where lies were being employed in order to keep the public in the dark. We are not even talking about a pattern of lying but rather a solid, uninterrupted wall.
How an intelligence oversight committee is supposed to oversee an agency that can declare all elements of oversight as classified is an ongoing puzzle that appears to be particularly frustrating for Wyden.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Wyden is no Snowden
So, uh, just what is it that Wyden does for a living, at taxpayer expense (?) ... and did he take some solemn oath to support & defend the Constitution? Why can't Wyden be a Snowden this time ??
Coats is being predictably evasive (yawn) -- but Wyden is not being transparent either.
Coats says Wyden already got the true (but "classified") answer at a closed budget hearing on June 15 2017 -- but Wyden does not acknowledge nor dispute that.
Therefore, Wyden is being evasive too. Why?
Wyden already knows the true answer to his question and can access that allegedly "classified" documentation in Congressional records -- and go public with it. And Wyden can easily speak publicly of the truth he knows from personal memory at "classified" meetings.
Seems however that Wyden (and his relevant staff) will never actually stand up and defend fellow citizens and Constitution... too risky, personally. Much easier to merely exchange letters/barbs with US Intelligence bureaucrats for decades.
What would a Snowden do in Wyden's Office?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
"What is?"
"The thing I can't tell you about!"
"I asked a yes or no question. If you don't say no, you do realize that people will assume the correct answer is 'yes,' right?"
"Sure, but I can't say 'yes' because... it's classified!"
"So the supposed bad guys (and the good guys, i.e. innocent, yet surveilled citizens) know the truth, but you technically didn't say it...?"
"Exactly!"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Think I will just assume the opposite of whatever they call something.
[ link to this | view in chronology ]
Lying to Congress is a Crime
[ link to this | view in chronology ]
Re: Lying to Congress is a Crime
It's not a lie though, it's a 'least untruthful answer', which is totally different. /s
[ link to this | view in chronology ]
One version is "Our lives for your freedom." That seems to have morphed into "Your privacy for our security.". Thus we are all made to sacrifice. I do not believe that is how we should be functioning. I do not believe that classified intelligence is our master yet here we are.
[ link to this | view in chronology ]
Any time something is classified...
...and it's not operational intelligence about a current or recent operation...
...it's hiding corruption and wrongdoing.
We need to get into the habit of assuming this is the case, always, until proven otherwise. Classified government records are never about service of the public interest.
[ link to this | view in chronology ]
Re: Any time something is classified...
That's not necessarily true.
Details of how to make a nuclear bomb, for instance, could rightly have been classified for years after the conclusion of the Manhattan Project, until such time as the information entered the public sphere by other means.
Your point is good in general, but there is room for legitimate classification that is not about current or recently-current operations.
[ link to this | view in chronology ]
Re: Re: Any time something is classified...
While I agree that there are certainly times where classification or hiding actions can be a good idea(your example being a solid case) the problem comes with over-classification, where things are classified by default rather than by need, agencies stonewall and hide information simply because they can or they don't want the public to know what they're doing because the public would object, things of that nature.
When the classification system is regularly abused on a wide scale then the entire system develops such a toxic reputation that people feel that they can't trust that a given piece of information was classified for a good, valid reason, rather than because an agency is doing something wrong and wants to hide it.
[ link to this | view in chronology ]
The Nth Country Experiment
Oddly, it was that very example, the classification of nuclear weapon technology to keep it from proliferating that was the topic of a notable research experiment that demonstrated we couldn't depend on dangerous technology staying hidden from extremist regimes: It took about three man-years to develop the complete designs for a fat-man style implosion device.
Fortunately, as North Korea's test history has shown us, nukes are delicate and nuanced, and it takes getting a lot of specific details just right to balance a bomb to get full yield.
Regardless, even then, yes, as That One Guy observes, our agencies classify techniques and methods based on security through obscurity but enough methods have been discovered to be distasteful to the public (for example, extrajudicial detention and torture, and stowing communication throughput in mass for search and processing later). Really, by now our government's departments should have long since lost the privilege of hiding techniques, or even answering only to congressional review, since they obviously don't have the moral fiber to tell right from wrong, or know not to lie to congress while under oath.
This is not to say that the people do, but with over-classification the public doesn't even have a voice, which is contrary to the notion of government by the people.
[ link to this | view in chronology ]
Keep asking the question
Maybe it will play out like Jeremy Paxman's famous interview of Micheal Howard. Paxman repeatedly asked Howard about overruling one of his subordinates
and Howard repeatedly replied
which you will notice is not answering the question. Paxman pointed out he had not answered the question and repeated it. Then eventually, after about 12 repetitions, moved on saying
Just search for
in any search engine and take your pick.
[ link to this | view in chronology ]
* definition classified.
** definition classified.
*** definition classified.
[ link to this | view in chronology ]
Re: 'Coats has now sent "an answer" but not a good one'
[ link to this | view in chronology ]