What Convinced Obama To Change His Position On NSA Surveillance?

from the because-it-sure-was-a-mess dept

Since details of the NSA's surveillance programs started coming to light in early June -- and President Obama's been forced to publicly answer for its activities -- the president has repeatedly reminded us that he came into office with a "healthy skepticism about these programs." But, after careful evaluation, he determined "that on, you know, net, it was worth doing."

Some of these programs I had been critical of when I was in the Senate. When I looked through specifically what was being done, my determination was that the two programs in particular that had been at issue, 215 and 702, offered valuable intelligence that helps us protect the American people and they're worth preserving. (From his August 9th Press Conference.)

It's a rhetorical strategy intended to win his critics' trust by demonstrating that he understands our concerns because he used to share them. The message he wants us to take away is: if we had been in his shoes and saw the evidence he saw when he got into office, we would have signed off on these programs too.

Well, this week we got a glimpse of some of the evidence he saw when he assumed office -- at least in connection to the NSA's collection of U.S. phone call records -- and, it begs the question, what exactly changed his mind about the NSA's domestic surveillance programs? What did the President see that led him to the conclusion that everything he had previously said on the topic was wrong because allowing the NSA to collect everyone's phone call records really is a constitutionally-supported, great idea?

Because, according to the documents the ODNI released this week, when President Obama took office, the NSA's "telephony metadata" program wasn't getting stellar reviews. In fact, we now know that days prior to Obama’s inauguration, the NSA reported that it had repeatedly violated the court-ordered rules limiting its use of the data it was collecting.  A little over a month later, a judge on the Foreign Intelligence Surveillance Court found that, "Since January 15 [five days before Obama's inauguration] it has finally come to light that the FISC's authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses" the phone call data.

Not only had the Intelligence Community been misrepresenting its program to the court, the judge, Reggie B. Walton, went on to write

The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.

And,

To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court's orders. The Court no longer has such confidence.

The judge also implied that -- other than hypothetical examples of how this data might provide intelligence of "immense value to the government" -- the government had yet to provide the court with concrete evidence that the program was actually providing that value.

This program has been ongoing for nearly three years. The time has come for the government to describe to the Court how, based on the information collected and analyzed during that time, the value of the program to the nation's security justifies the continued collection and retention of massive quantities of U.S. person information.

Again, Judge Walton reached these conclusions based on evidence that was available to him at the very same time that I imagine President Obama and his team were evaluating these programs. Plus, I'm assuming the president considered Judge Walton's opinion in his evaluation, right?

So, what exactly convinced President Obama that this was "worth doing?" Because as the president explained last month, the prospect that something could happen isn't the same as actual evidence that it has or ever will.

Jennifer Hoelzer is a long-time Congressional staffer with tremendous expertise on national security issues. This story is cross-posted from from her site, with permission, but you should check out her site for more insightful analysis of national security issues.

Filed Under: abuses, barack obama, fisc, keith alexander, nsa, nsa surveillance, section 215, section 702

How Many Lies Can A Politician Stuff Into A Single Sentence About NSA Surveillance?

from the is-this-a-new-record? dept

In a recent comment on the site, reader PT pointed us to a statement from Representative Joe Heck explaining why he voted against the Amash Amendment. The statement was from back in July, soon after the Amash Amendment to defund certain NSA activities was narrowly defeated. While the statement is now a couple months old, what amazes me is the statements of fact that are flat out false in there. And we're not just talking about statements that were later proven to be false. These are things that were known to be false at the time -- from a Representative who is on the House Intelligence Committee and who must have known these statements were lies. Just for simplicity's sake, let's focus on the main one and stand back in amazement at just how many flat out lies Rep. Heck told in a single sentence:

The Amash amendment would have eliminated Section 215 of the Patriot Act which we know has thwarted 54 terrorist plots against the US (and counting).

This is a lie. It's not a half truth. It's not a misstatement. It's not confusion. It's an out and out lie. Actually, it's a whole series of lies. Almost nothing in that statement is true. In fact, I can't find anything in that statement that is true. Every single part is a lie. At no point has anyone in the Intelligence Community stated that Section 215 thwarted 54 terrorist plots against the US. First off, the 54 number, which was first released by the NSA's Keith Alexander, wasn't about "terrorist plots" but rather "potential terrorist events." Yes, that language is purposely broad and opaque. What counts as a "terrorist event"? A meeting? A party? It's not at all clear that these were actual "terrorist plots." In fact, a month before Heck's totally bogus claim above, the NSA clarified that only 42 "plots" were involved in that 54 number. The other 12 weren't plots, but rather "material support to terrorists" whatever that might mean.

Second, Alexander wasn't talking about Section 215 of the Patriot Act for most of those "events." He admitted that 53 of the 54 cases actually involved Section 702 of the Patriot Act (the PRISM program) which wasn't the part that was up for a vote in the Amash Amendment. So Heck is, once again, lying in claiming that Section 215 stopped those plots.

Third, at no time did Alexander or anyone at the NSA say they were all targeted against "the US" as Heck falsely claims. The very same day that Alexander shared the 54 number, he also admitted that only about 10 involved the US -- a number that was quickly clarified a few days later: only 13 "had a homeland nexus." So, already, it's pretty clear that the claim of "54 thwarted terrorist plots against the US" is completely bogus (and, remember, all of this was public a month before Heck's statement).

Fourth, of those 13 that "had a homeland nexus," almost none required the NSA's surveillance efforts. When confronted by Senator Leahy in a Senate hearing, the NSA's deputy director John Inglis admitted that the surveillance merely "made a contribution" to the efforts against 12 of those plots, but wasn't particularly key to stopping them. Inglis admitted that the surveillance programs were actually only "critical" in a single case: the Zazi NYC Subway case.

So now we're down to just one plot in the US -- and we're not even talking about Section 215 any more, but Section 702. Oh, and as for that one case, multiple press reports have pointed out that the claim that NSA surveillance was needed to catch Zazi just isn't true, because traditional police work was able to do the brunt of the work in identifying Zazi and the plot.

Oh, and finally, the Amash Amendment would not have "eliminated Section 215." It merely would have defunded using Section 215 to justify collecting metadata on every phone call. Section 215 would still be in place, and the government would still be able to use it to access "tangible things" and various "business records" so long as they were actually related to a counterterrorism operation.

So there you have it. A Congressional Representative who is on the Intelligence Committee, who voted against the Amash Amendment, and defended it with a cascading series of flat out lies. While the Amash Amendment would have defunded the data collection of metadata on all phone calls, it did not get rid of Section 215, which was not used to thwart 54 terrorist plots (not even one!) and many of those "plots" weren't "plots" and very few were actually in the US.

What gets me, however, is that few people seem willing to say that he flat out lied. This isn't a case of a misstatement or confusion or even things that were revealed later. Nearly all of the points that I highlighted above were public knowledge nearly a month before Heck made his untrue statement.

Isn't it time that someone actually called out elected officials when they state things that are clearly lies to constituents?

Filed Under: amash amendment, joe heck, justin amash, keith alexander, lies, nsa surveillance, patriot act, prism, section 215, section 702, surveillance, terrorism, zazi

Feds Had Court Reverse Ban On Warrantless Searches On Americans Because 'We Wanted To Be Able To Do It'

from the that-whole-4th-amendment-mean-anything-to-you? dept

Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program -- the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like "target" and "relevance." We noted that this was due to a "rule change" in 2011, but the details of that change weren't entirely clear... until now.

The Washington Post has the story (along with the recently released -- though heavily redacted -- FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it's almost certainly a major 4th Amendment violation. The Obama administration's reasoning? As noted below, a chief administration lawyer explains: "We wanted to be able to do it." The "it" there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.

What's a little surprising is that I'm pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines "target" not to mean just the person that they're targeting, but rather the entire investigation. So as long as the goal of the collection was to "target" a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.

What's astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Um. "We wanted to be able to do it" is not exactly a valid reason for violating the clear language of the 4th Amendment. I'm sure plenty of government officials "wanted to be able to do" all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don't like. But we don't allow it because the Constitution says you can't do that.

But Litt just can't help himself, he's so proud of violating the 4th Amendment.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The duplicity here is incredible. First, they redefine "target" to allow them suck up American's communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say "oh fine" and overturn a clear rule that says they can't look at those communications, and Litt doesn't see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don't happen. Yet, now he nonchalantly waves off the issue as being "of course" they search that information because he thinks it's "lawfully collected" despite being almost directly against the plain language of both the law and the Constitution? Wow.

Oh, and as a "bonus" they appear to have tossed in the ability for the NSA to keep Americans' communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.

And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this "rule change." Once again, it seems that the administration and the NSA's defenders keep claiming one thing, and only later, as it's pointed out that the opposite is true, do they say something like "oh, yeah, well of course we do that..."

Filed Under: 4th amendment, backdoor loophole, fisa amendments act, nsa, nsa surveillance, prism, robert litt, section 702, warrants

Obama's Response To NSA Surveillance: Some Minor Reforms & Transparency; Still Lacking Justification

from the uh,-not-good-enough dept

President Obama just gave a press conference in which he announced a four step "response" to the public's concerns over the revelations of NSA surveillance. He continued to defend the basic program, even referring to his public record concerns back when he was a Senator. He further claims that prior to Snowden's leaks he'd already ordered a full review of these programs (of course that was all in secret) and Snowden's leaks merely "accelerated" the process (while also, Obama claimed, putting our national security "at risk"). However, he admits that -- while disturbed about Snowden's leaks -- he recognizes the public's concerns over NSA surveillance and the fact that there is a history of "abuses" when there are "great capabilities" for surveillance. As such, he's proposing a four-pronged plan to defend the programs, reform them slightly, and increase transparency to build up trust.

1. Consider some "reforms" of Section 215 of the Patriot Act, and will reveal more details of the government's secret legal interpretation under Section 215 that allows them to hoover up all data on every communication. That document has been released, and will be discussed in a future post.
2. Improve "public confidence" in the FISA court (FISC) with greater transparency about FISC decisions and support for a civil liberties advocate playing a role in "appropriate cases" so that the judges don't just hear from one side. This reform has been suggested a few times and isn't a terrible one, but does have some logistical problems.
3. Set up a website to increase transparency. Yeah, sure.
4. Set up a group of "outside experts" to review the whole program. Seems a bit late for that.

That's about it. Note that there are precious few specifics. It's a lot of rhetoric about transparency, with a few random claims about how important these programs are. Separately, he continued to insist that we're better than some other countries (setting the bar low) and that we don't spy on Americans -- despite the evidence from this morning that this isn't true.

In answering questions, he insisted the two key programs being discussed, Section 215 of the Patriot Act and 702 of the FISA Amendments Act, were critical to finding important intelligence -- despite the fact that multiple Senators have insisted that there remains no evidence that Section 215 was necessary in any terrorist case.

All in all this seems like a PR scramble by the an administration that realizes it's on the losing side of the public debate. The promises seem pretty weak and hollow. The idea that he was already moving in this direction before the Snowden leaks is simply laughable. Section 702 was just renewed eight months ago and his administration fought very hard against any detailed analysis and any amendment to the law. Reality just doesn't support these claims.

Filed Under: fisa court, fisc, nsa, nsa surveillance, partiot act, president obama, section 215, section 702, transparency

NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.

If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americans as a form of permission to spy on Americans:

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general.

And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

Filed Under: 4th amendment, faa, fisa amendments act, fisa court, fisc, nsa, nsa surveillance, searches, section 702, surveillance

US Official Admits Spying On US Phone Calls & Internet Had Nothing To Do With Latest Terror Alert

from the but-of-course dept

As we already noted, defenders of the NSA's mass dragnet collection of data on Americans, such as Senator Saxby Chambliss, have used the latest terror alerts to justify those programs, claiming:

They are what lead us to have the - or allow us to have the ability to gather this chatter that I referred to. If we did not have these programs, then we simply wouldn't be able to listen in on the bad guys.

Right, so that's a direct claim that these programs -- the Patriot Act Section 215 hoovering up of all metadata and the FISA Amendments Act Section 702 access to data from internet companies -- are apparently necessary to catch the communications from leaders in Al Qaeda that resulted in the terror warnings. That seems dubious for a variety of reasons (not the least of which is that it seems pretty clear that any terrorist with more than a couple of brain cells already knows to avoid anything that might trigger such programs). And, of course, now it's come out that the alert came about because of an intercepted conference call, but that doesn't mean it came via these programs And, indeed, buried in an AP article about the terror alert is this little tidbit:

But an intelligence official said the controversial NSA programs that gather data on American phone calls or track Internet communications with suspected terrorists played no part in detecting the initial tip.

In other words, it would appear that Chambliss flat out lied to defend these programs. I guess we can just add that one to the ever growing list.

Filed Under: al qaeda, nsa surveillance, section 215, section 702

Dueling Amendments To Cut NSA Surveillance Funding; But One Is A Red Herring To Trick Congress

from the vote-for-the-right-one dept

We've been talking about the effort by Rep. Justin Amash to pass an amendment to the defense appropriations bill that would strip funding from the NSA when it comes to their surveillance efforts. While some in the House were trying to block his amendment from getting anywhere, it's been ruled in order and is likely to be voted on this week, most likely tomorrow (Wednesday). To be clear (as we'll describe in more detail below), it only tries to stop the funding of one specific program: the bulk collection of metadata. You can see the amendment here, but the key text:

None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).’’

To translate this back to English, it's saying that Congress would basically defund the vast dragnet gathering of every bit of metadata done by the NSA on all phone records (and potentially other bulk records not yet revealed). These are done under a very questionable interpretation of §215 of the Patriot Act, which is the "tangible things" section or the "business records" section. In the law, it's also known as 50 USC 1861, where any common sense reading of the law would suggest that it only applies to specific records related to a non-US person under investigation. But, it's been twisted and stretched to mean the NSA can collect all records on all phone calls to search through at a later date at their leisure. What Amash's amendment is seeking to do is to basically say no funds can be use for this crazy and twisted interpretation, but rather funds can be used for the original and common sense interpretation. That is, the feds can still request business records under this section, but only if those specific records "pertain to a person who is the subject of an investigation."

In short: this part of the law can no longer be used to justify "collect everything and sort it out later."

However, since NSA supporters were unable to kill the Amash amendment outright, it looks like they've moved onto a sneaky alternative move: getting Rep. Richard Nugent to introduce a competing amendment that looks like it does something similar in defunding NSA surveillance, but in reality just reinforces the status quo. In other words, the Nugent amendment is a nefarious red herring, designed to attract votes from Reps away from Amash's amendment. It's a pretty scammy trick. The Nugent Amendment reads as follows:

None of funds made available by this Act may be used by the National Security Agency to—

(1) conduct an acquisition pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 for the purpose of targeting a United States person; or

(2) acquire, monitor, or store the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication of a United States person from a provider of electronic communication services to the public pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978.

At a quick glance, these amendments may look similar. Both say stuff about how no funds can be used for certain forms of surveillance. But the specifics are very important here. There's been an awful lot of confusion over the past couple of months of revelations between two different programs and which laws they come under. As described above, much of the concern with the vast collection of data is about Section 215 under the Patriot Act. The separate concerns, about the PRISM program, fall under Section 702 of FISA. It looks like the Nugent amendment may be pulling funding from that, but it's not. It just says that it wouldn't allow funds to be used for Section 702 if it's "targeting a US person." But Section 702 already forbids the targeting of US persons and while there are some questions as to how well the NSA follows this limitation, so far there's been no real evidence that 702 is used to target US persons. So, this is just restating the status quo, and doing absolutely nothing to fix the gross reinterpretation of Section 215.

There are problems with a wide variety of NSA programs, but the Amash amendment actually seeks to pull funding from one of the worst parts, while the Nugent amendment has the appearance of doing so while actually just reinforcing the status quo. Someone looks like they're trying to pull a fast one on everyone. Now might be a good time to phone your own elected representative to tell them that you expect them to support the Amash Amendment. If the Amash Amendment passes, there's nothing wrong with the Nugent Amendment also passing -- it doesn't really change anything. But if any Rep votes for the Nugent Amendment believing it's an alternative to the Amash Amendment, they're making a huge mistake.

Filed Under: fisa, funding, justin amash, nsa, nsa surveillance, patriot act, red hering, richard nugent, section 215, section 702

NSA Deletes Fact Sheet On NSA Spying After Senate Points Out It's Actually NSA Lying

from the transparency-needed dept

The joke around the NSA used to be that the acronym stood for "No Such Agency" as its very existence was denied for years. While the NSA is now very official, it's still probably the most secretive agency out there. That's to be somewhat expected, given its mission, but it appears that when it needs to be transparent, it doesn't do very well at all. We noted yesterday that Senators Ron Wyden and Mark Udall had called the NSA out for flat out lying on a "fact sheet" the agency had posted about its section 702 surveillance efforts. The NSA's response? They quietly deleted the pdf document from their website. Because it's not like the internet notices when you suddenly delete the document you put out to defend your overreaching surveillance techniques... You'd think that, of any agency out there, the NSA would recognize the most that simply deleting something on your local computers doesn't make it actually disappear from the world. But, here's the best part:

Separately Tuesday, another NSA official said the removal of the fact sheets and letter from the senators were unrelated.

Ah, yeah, I'm sure it had absolutely nothing to do with that whatsoever...

In more "unrelated" news, NSA boss, General Keith Alexander has also admitted that perhaps the fact sheet wasn't fully accurate:

"After reviewing your letter, I agree that the fact sheet that the National Security Agency posted on its website on 18 June 2013 could have more precisely described the requirements for collection under Section 702 of the FISA Amendments Act."

Oh, I'm sure that the original wording was fairly "precise." It's just that it was precisely misleading, which is the sort of precision that the NSA seems to specialize in when it comes to any sort of public discussion.

Filed Under: fact sheet, keith alexander, mark udall, misleading, nsa, ron wyden, section 702