Political Moves: How Dianne Feinstein Cut Off One Of The Few Attempts At Actual Oversight By Senate Intelligence Committee

from the no-time! dept

We've already covered how Dianne Feinstein used the Senate Intelligence Committee hearing to play games with the English language, while Senator Dan Coats used it to rant against all you stupid Americans for not trusting the NSA, but there have been some actual attempts to have the Senate Intelligence Committee perform its actual duty of oversight. Both Senators Ron Wyden and Mark Udall -- who have been trying to raise these questions for years -- actually had specific questions for the assembled panel, but the panel (mainly Keith Alexander) did its best to completely avoid answering the questions, then used political gamesmanship to block Wyden from asking followups.

Wyden used his question to highlight what he's been hinting at for years, that it's almost certain that the NSA has collected bulk data on the locations of Americans (something not yet officially revealed, and which they've sort of tried to deny for a while). Wyden has been asking versions of this question for a few years (and trying to pass legislation blocking this kind of thing for nearly as long). But watch how Keith Alexander never actually answers the question:

Wyden: Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won't be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans' cell-site information in bulk. What would be your response to that?

Gen. Keith Alexander (Alexander): Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA's intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware....

Note the word games: "under Section 215." He does not say whether they've used some other authority to do so. And then he's just repeating talking points so Wyden flat out cuts him off:

Wyden: General, if I might. I think we're all familiar with it. That's not the question I'm asking. Respectfully, I'm asking, has the NSA ever collected or ever made any plans to collect Americans' cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?

Alexander: We did. We sent that — as you're also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper's July 25th response to this question. So what I don't want to do, Senator, is put out in an unclassified forum anything that's classified there so I'm reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.

Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I'll have additional questions on the next round. Thank you, Madam Chair.

First off, Alexander's answer shows that, contrary to the assertions of some staunch NSA defenders, it is entirely possible to answer a question by saying "there is more information in classified documents that shouldn't be shared in an open setting." Some have tried to excuse James Clapper's lies to Congress by suggesting he couldn't have said more or less what Alexander said here.

Second, note the doublespeak that Alexander is engaged in here. Even asked, again, to answer the basic question, Alexander pulls an "under this program" type of answer, suggesting (again) that American location data either has been, or is planned, to be collected in bulk. That is worrisome, and should not be classified information. Rather it should be open to public debate as to whether or not it's appropriate.

But here's where the political gamesmanship came in. Committee chair Dianne Feinstein gave Senators only five minutes each for their questions. It seemed like a majority of this "oversight" committee didn't actually ask any questions, but rather, like Coats, simply filibustered angrily at the American public or press for not trusting the NSA. But when actual questions were asked, not enough time was given to get a straight answer. At the very end of the hearing, after most of the other Senators had left, Senator Wyden made a perfectly normal request: could he ask his followup questions. He noted that he just had two questions and both could be asked within an additional five-minute window. Senator Susan Collins, who had similarly filibustered during her own five minutes (focusing mainly on knocking down a complete strawman: falsely insisting that people were upset that the NSA was using Section 215 of the Patriot Act to record all phone calls, when everyone knows that it's just about call records, not call contents), objected to Wyden's request because she thought everything would go in order. It was pure political gamesmanship.

So instead of getting to conduct more actual oversight by having the committee ask important questions of the surveillance bosses, the panel, instead, moved on to the "second part" of the hearing, which involved two staunch non-governmental NSA defenders who basically sat down to talk about the awesomeness of being able to spy on everyone. Ben Wittes opened with a "joke" about how the NSA's director of compliance John DeLong, mocked the level of scrutiny the NSA was under by pointing out that if he had typos in a document he'd have to reveal that to some oversight authority. Har har. This was useless. There was no reason to have them testify, and they were given a hell of a lot more time than the Senators actually asking questions.

That time could have been used to actually conduct oversight. Instead, we got nothing. Throughout the panel Senators pointed out that the American public doesn't trust the NSA right now (though, they often blamed the public and the press for this, rather than the direct actions and statements of the NSA). If they wanted a lesson in how not to build up that trust, holding a completely toothless "oversight" hearing was a pretty good start.

After Wyden, Udall also asked some specific questions, in which the deputy Attorney General basically just repeated the FISA Court ruling saying that "relevant" has been redefined by the intelligence community to mean basically anything that the intelligence community feels is "necessary" to its investigations, and seems to think that it's a good thing that this is a "low bar." He completely ignores the basics of the 4th Amendment, as well as recent Supreme Court decisions on the topic.

I've included the video of both Wyden and Udall's questions below, so you can see the less than 20 minutes of the two-hour session where actual serious questions were asked.

Filed Under: dianne feinstein, james clapper, james cole, keith alexander, mark udall, ron wyden, susan collins

Bipartisan Group Led By Wyden And Udall Introduce Legislation Aimed At Comprehensive Reform Of Surveillance Programs

from the a-better-balancing-of-security-and-liberty dept

Ron Wyden, Mark Udall, Richard Blumenthal and Rand Paul held a press conference today to discuss proposed legislation for reforming the NSA's surveillance programs. The bipartisan group assembled here is looking for actual reform, rather than the light touch-ups that have made up the majority of the administration's contributions to the national security discussion.

Their proposal breaks down roughly into five key points (hat tip tothe ACLU's Michelle Richardson for tweeting updates during this press conference).

The first proposal is to eliminate the Section 215 bulk records collections. As Wyden points out, no evidence exists that this data collection has led to the prevention of any terrorist attacks. Blumenthal adds to this point later in the press conference by referring to the oft-quoted "54 attacks prevented" statement as "bogus." Wyden also points out that the email records collection was already shut down (in 2011) for exactly this reason: no proven effectiveness. Wyden states that, with this bill, the dragnet collection of law-abiding citizens' information will be "outlawed."

Second, the bill will close the backdoor search loophole in the FISA Amendments Act that allows intelligence agencies to rifle through the communications of millions of Americans without a warrant. Originally, this was intended to search only foreign communications but that loophole (which had been closed in 2008) was reopened by a secret rule change in 2011. This would simply fix what should never have been there in the first place.

Third, Blumenthal's FISA Court Reform bill would be folded in, which would provide for a special advocate to act as an adversarial party in FISA court deliberations. As is pointed out later, this addition wouldn't unnecessarily burden the court. The advocate wouldn't be present for every warrant authorization but would sit in whenever major policy questions are being discussed in order to present the privacy and civil liberties side of the issue.

Fourth, the bill adds in Rand Paul's fix for the ongoing "standing" problem. As the system is set up now, it is extremely difficult to be granted standing to sue the government for civil liberties violations because of the secrecy surrounding the programs (although Snowden's leaks have greased the wheels a bit). Up until very recently, the courts have stated that if you can't prove the government is surveilling you, then you can't sue them for surveilling you. And since the government is in no hurry to hand out the data it's collected on American citizens, it's nearly impossible to obtain that proof. This would expand the ability of Americans to pursue the government in court for any ill effects suffered as a result of the government's surveillance activities.

Finally, the legislation will target the abuse of NSLs and strengthen the protections against reverse targeting.

This won't completely dismantle the NSA's programs but it will greatly reduce its domestic intelligence gathering. As Udall points out later in the conference, intelligence agencies will still be able to target terrorists and spies -- they just won't be able to sweep up non-targeted bulk collections of data on American citizens -- and they'll have to do better than simply claim the data might be "relevant."

As is now the new "normal," the backers of this bill are drawn from both parties. The NSA's overreach has managed to unite parties in a way the administration has been unable to do for nearly five years. As Wyden states, the narrow defeat of the NSA-defunding amendment proposed by Justin Amash was a "wakeup call" that demonstrated that many representatives were willing to cross party lines to protect civil liberties. That, in and of itself, is promising. But taking the first step as a bipartisan group should allow the bill's backers to draw support from both sides of the aisle, something that will greatly increase the chances of its success.

Filed Under: mark udall, nsa, nsa surveillance, rand paul, reform, richard blumenthal, ron wyden, section 215

Senators Wyden & Udall Ask If The NSA Is So Confused About Its Own Capabilities, Why Do We Trust Them With All That Data?

from the because-reasons dept

Senators Ron Wyden and Mark Udall have put forth another statement about the recently declassified documents about the NSA's surveillance efforts. As you may remember, one of the points made by the NSA in its defense was that its surveillance systems were so complex that no one person actually understood them all. That leads to a rather obvious question... If the NSA can't even keep track of how its systems work, how can we trust them to know that the system isn't being abused (or that it's accurately doing what the NSA claims):

“Documents declassified last week clearly show that court orders authorizing the NSA’s bulk collection of phone records were consistently violated by the NSA. These documents also show that the government repeatedly made serious misrepresentations to the Foreign Intelligence Surveillance Court when seeking authorization to conduct this bulk collection. The intelligence community’s defense was that these violations were occurring because no one had a full grasp of how the bulk collection program actually worked.

"If the assertion that ineptitude and not malice was the cause of these ongoing violations is taken at face value, it is perfectly reasonable for Congress and the American people to question whether a program that no one fully understood was an effective defense of American security at all. The fact that this program was allowed to operate this way raises serious concerns about the potential for blind spots in the NSA’s surveillance programs. It also supports our position that bulk collection ought to be ended.

"The government’s misrepresentations inevitably led to the Foreign Intelligence Surveillance Court being consistently misinformed as it made binding rulings on the meaning of U.S. surveillance law. This underscores our concern that intelligence agencies’ assessments and descriptions about particular collection programs — even significant ones — are not always accurate. It is up to Congress, the courts and the public to ask the tough questions and require intelligence officials to back their assertions up with actual evidence. It is not enough to simply defer to these officials’ conclusions without challenging them.”

TL;DR? If the NSA doesn't understand its own capabilities, how can they insist that it's used reasonably and judiciously?

There are, of course, two basic answers to this. The first, is that the NSA was lying about why it failed to properly inform the FISA Court as to its actions. The second is that the NSA is a complete disaster and it really has no clue about its own systems. The NSA would like people to believe the latter, even if most people seem to believe the former. What Wyden and Udall are making clear is that if the the latter is true, then it suggests the NSA needs much more oversight. I would imagine that if the former is true, there are reasons why the NSA needs more oversight as well. So, perhaps the much shorter version of all of this is that the NSA has made it clear it needs much more outside oversight.

Filed Under: capabilities, mark udall, nsa, nsa surveillance, oversight, ron wyden

Declassified Documents Prove NSA's Bulk Metadata Collections Completely Unnecessary

from the but...-but...-haystacks! dept

Senators Ron Wyden and Mark Udall have posted a statement in response to the NSA's compelled release of declassified documents. The statement points out that Americans will now have a better grasp on the size of the "iceberg" that once lay hidden below the barely-visible tip.

Wyden and Udall go on to state that what's been released in these documents indicates that the bulk metadata collection programs the NSA swears are so essential to its counterterrorism efforts are clearly unnecessary.

In addition to providing further information about how bulk phone records collection came under great FISA Court scrutiny due to serious and on-going compliance violations, these documents show that the court actually limited the NSA’s access to its bulk phone records database for much of 2009. The court required the NSA to seek case-by-case approval to access bulk phone records until these compliance violations were addressed. In our judgment, the fact that the FISA Court was able to handle these requests on an individual basis is further evidence that intelligence agencies can get all of the information they genuinely need without engaging in the dragnet surveillance of huge numbers of law-abiding Americans.

All the violations of civil liberties have likewise been unnecessary and the supposed high wire act of "balancing" privacy concerns with national security is swiftly being proven to be just that: an act. If the NSA was able to still operate under these restrictions, its claims that only huge haystacks have the capability of producing needles is demonstrably false. General Alexander's desire to grab all the data has had a markedly deleterious effect on the agency's ability to operate within the guidelines set down by the FISA court.

Udall and (especially) Wyden have been muted in their attempts to warn US citizens about the data harvesting occurring just out of sight. But Ed Snowden's leaks have forced the issue into broad daylight, vindicating these senators' rigid stance against the increasing reach of our nation's security agencies.

As they say, the NSA's bulk records collection is not only a "significant threat to the constitutional liberties" of American citizens, it's also a "needless" one. The second half of that statement is the most damaging. Abuses, overreach and data collections amassed for the sake of collecting data -- an ultimately all for nothing.

Filed Under: bulk colleciton, mark udall, metadata, nsa, nsa surveillance, ron wyden, section 215

Wyden And Udall: Latest Revelations Of Abuses 'Are Just The Tip Of A Larger Iceberg'

from the and-here-we-are-on-the-titanic dept

Following the latest revelations of widespread abuses by the NSA, Senators Mark Udall and Ron Wyden -- who had just recently warned that the intelligence community was not being upfront about abuses -- have put out a statement saying that there's still a lot more that hasn't yet been revealed:

The executive branch has now confirmed that the rules, regulations and court-imposed standards for protecting the privacy of Americans have been violated thousands of times each year. We have previously said that the violations of these laws and rules were more serious than had been acknowledged, and we believe Americans should know that this confirmation is just the tip of a larger iceberg.

They point out that they really can't reveal the details, but they're hopeful that President Obama and the intelligence community recognizes that it's better for them to come clean themselves. The obvious implication is that everyone knows that there are still thousands of documents held by reporters, and these other abuses are likely to come to light before long:

While Senate rules prohibit us from confirming or denying some of the details in today's press reports, the American people have a right to know more details about the scope and severity of these violations, and we hope that the executive branch will take steps to publicly provide more information as part of the honest, public debate of surveillance authorities that the Administration has said it is interested in having.

In particular, we believe the public deserves to know more about the violations of the secret court orders that have authorized the bulk collection of Americans' phone and email records under the USA PATRIOT Act. The public should also be told more about why the Foreign Intelligence Surveillance Court has said that the executive branch's implementation of Section 702 of the Foreign Intelligence Surveillance Act has circumvented the spirit of the law, particularly since the executive branch has declined to address this concern.

If the past is any indication, the intelligence community and the White House will ignore this. Sooner or later they're going to have to realize that every misrepresentation, every denial later proven false and every outright lie is only making things even worse. The window has probably already passed for the administration and the intelligence community to regain the trust of the public, but if it's going to happen, having the government come clean would be a good start.

Filed Under: abuses, mark udall, nsa, nsa surveillance, ron wyden, tip of the iceberg

Senators Wyden And Udall: US Gov't Still Not Being Honest About NSA Surveillance

from the but-of-course dept

Even while NSA defenders are bitching about Senator Ron Wyden hinting strongly about the NSA and the DOJ abusing various interpretations of the law to spy on Americans with the bulk collection of data, it seems that neither Wyden nor Senator Mark Udall are planning to back down. Specifically, Wyden noted (as explained below) that the feds admitted to serious violations of the law -- but have done so in classified letters, rather than publicly. He's hoping to change that.

Wyden told Politco that "U.S. intelligence agencies’ violations of court orders on surveillance of Americans is worse than the government is letting on." Julian Sanchez, over at Cato, notes that Wyden seems to be all but screaming about how the feds have also collected location data, despite carefully worded denials. As Sanchez notes, Wyden keeps going back to questions concerning location tracking via mobile phones -- and it would seem odd to do that if he didn't know something. After all, the revealed info so far hasn't included location data:

Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records. Wyden, of course, would know full well whether there is or is not any such program via his role on the Intelligence Committee—and his focus on location tracking over the activities we know NSA is engaged in, such as monitroing of Internet communications and bulk collection of phone records, would be an inexplicable obsession if he knew that no such program existed.

From what Wyden said today, it sounds like the NSA potentially did collect location data, but may not be doing so currently "under these programs."

Both Udall and Wyden took to the Senate floor this evening to argue further that the government is not being fully honest in what it does, and that it's a violation of our privacy. They're now introducing legislation to limit these government surveillance programs (from the Patriot Act Section 215 and the FISA Amendments Act Section 702). Specifically, the proposal is for the government to be able to request that the telcos do a search if they can show a good reason for a search -- rather than collecting all data and searching them later.

Udall pointed out that defenders of these programs are carefully choosing their words and conflating various programs, picking and choosing to mislead the American public. For example, he points out that the claims that the bulk phone records program was instrumental in stopping 54 "terrorism" cases are not accurate, and that, as an Intelligence Committee member, he's yet to see any evidence that the bulk collection of phone records has been necessary to stop any terrorism event. Rather he hints strongly that defenders of the program are using other programs and using misleading statements to pretend the bulk records were necessary. As he points out, the bulk records may have made things more convenient, but that's no excuse for violating the privacy of millions (or hundreds of millions) of innocent Americans.

Wyden's speech goes into similar territory about the complete lack of evidence that the bulk data collection was necessary in any terrorist cases, but then goes further, saying that the "classified" documents that James Clapper sent last week show that the NSA's admitted violations of the Patriot Act show that their actions are significantly worse than has already been disclosed. He urged other Senators to go read the classified documents that Clapper sent, noting that when they read them, they'll realize just how badly the intelligence community has violated the law. He says that he's going to push to have more info about those abuses disclosed and declassified. Later, he points out that the rules of the Intelligence Committee mean he's not allowed to "tap out warnings in Morse code" and that limits his ability to play the watchdog role he's supposed to play on that Committee. He also said that their public statements "significantly exaggerated" the importance of bulk data programs -- and uses the example of the bulk data collection of emails, which was shut down in 2011 after the surveillance community failed to prove to the Intelligence Committee that the program was actually useful. He notes that if the government can't show that the program increases either security or liberty, it seems like it should be ended. Instead, he notes that we can make changes to the intelligence community that let us have security and liberty without compromising either.

Filed Under: bulk collection, government, james clapper, location data, mark udall, nsa, nsa surveillance, patriot act, ron wyden, section 215, surveillance

Senators Not Impressed With James Clapper's Carefully Worded Responses

from the this-program? dept

You may recall that, back in June, 26 Senators had teamed up to send Director of National Intelligence, James Clapper, a series of rather direct questions about the NSA's surveillance efforts. Clapper took his sweet time (nearly a month) to get back to them, but finally did so on Friday (always have to avoid the news cycle, I guess). The answers are... about what you'd expect: strongly denying certain things, using extremely precise language, and claiming that most of the important details are in the "classified response" that was attached for Senators only. Let's dig in a bit:

This leak, along with the others that have occurred, will do significant damage to the Intelligence Community's ability to protect the nation. But it is not correct to say that Section 215 had been "secretly reinterpreted." The relevant materials were, of course, properly classified to protect sensitive intelligence collection activity, but, as Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees. Moreover, the Executive Branch undertook special efforts to ensure that all Members of Congress had access to information regarding this classified program prior to the USA PATRIOT Act's reauthorization in 2011, including making a detailed classified white paper available to all Members. Specifically, in December 2009, the Department of Justice and the Intelligence Community provided a classified briefing paper to the Senate and House Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata program. Both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of Section 215. That briefing paper was then updated and provided to the Senate and House Intelligence Committees again in February 2011 for all Members in connection with the reauthorization that occurred later that year.

Note how it's made clear that this information was available to those in Congress, but that doesn't mean that most in Congress were looking over it -- or that those who were allowed to see it (i.e., the Representatives and Senators themselves) could fully understand what it all meant without their staff experts who (for the most part) are not allowed to see that information. Notice that they didn't provide a "briefing" for all members of Congress, but rather "a classified briefing paper... that could be made available." These are not the words of someone who made sure that Congress would be informed. These are the words of someone who wanted to have a "cover your ass" trail down the road to pretend that Congress was informed.

Clapper also makes liberal use of "under this program" language to avoid answering more direct questions about things done by the NSA and other government agencies:

The data collected under this program is limited to telephony metadata: information about telephone calls such as the originating and dialed telephone numbers, the time a call is made and its duration. It does not include the content of any communication or the identity of any party to a communication.... In addition, as we have repeatedly and publicly said, we are not collecting cell site location information under this program.... Data acquired under this program may be used only to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.

Right. Under this program. But, this is just one of many programs. Not very comforting. In fact, later in the letter, Clapper admits that under other programs, the NSA also collects "internet metadata."

In addition to the bulk telephony metadata collection, NSA has in the past used FISA authorities to collect bulk Internet metadata. The Government terminated this collection program in 2011 for operational and resource reasons reflected in the classified December 2, 2011 letter to the Senate Select Committee on Intelligence. NSA has not used USA PATRIOT Act authorities to conduct bulk collection of any other types of records. Additional information is provided in the classified supplement.

This information was already more or less public, with details coming out at the end of June.

Later, Clapper again insists that Congress was fully informed, but "fully informed" seems to mean something very different to him than it does to all those members of Congress who have been speaking out about the program:

... this program was operational and, as discussed above, Congress was fully aware of it when it reauthorized the legislation for an additional five year period in 2011.

There was also a question about whether or not the NSA is tracking locations via mobile phone data. Clapper again chooses his words carefully, giving a sort of "well, not at this time" type of answer, but by not saying that it doesn't have the authority to do so, makes it clear that it believes it can do this if it wishes:

As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so. The Director of NSA indicated on October 20, 2011 that he would notify Congress of NSA's intent to obtain cell site location data prior to any such plans being put in place.

Not surprisingly, the two main authors of the original letter, Senators Ron Wyden and Mark Udall are not particularly satisfied with this response:

This response is appreciated, but the intelligence community still has left many of the questions most important to the American people unanswered. Given the implications for the privacy of the millions of law-abiding Americans, intelligence leaders were specifically asked to demonstrate the unique value of the bulk phone records collection program. They did not. Instead, they persist in citing two cases where the government could have obtained a court order or emergency authorization for the information it needed. The bottom line is we still have yet to see concrete evidence that the dragnet collection of phone records provides any unique value.

It’s also deeply troubling that while the NSA claims no current plans to turn Americans’ cell phones into tracking devices, it clearly claims the authority to do so. This response leaves our question of past plans unanswered. Their violations of the rules for handling and accessing bulk phone information are more troubling than have been acknowledged and the American people deserve to know more details. And we are amazed that intelligence leaders deny that the PATRIOT Act has been ‘secretly reinterpreted’ when it is obvious that most Americans and many members of Congress had no idea that this law could be used for bulk collection of millions of law-abiding Americans’ personal records.

In addition, the intelligence community’s response fails to indicate when the PATRIOT Act was first used for bulk collection, or whether this collection was underway when the law was renewed in 2006. We believe that law enforcement and intelligence agencies should have the tools needed to protect the American people, but the collection of bulk phone records needlessly invades the privacy of law-abiding Americans without visibly enhancing their safety.

Also, remember that this is from James Clapper, who has already admitted to lying to Congress about these programs. It's difficult to see how he has even the slightest credibility on this, let alone why he still has the job.

Filed Under: james clapper, mark udall, metadata, nsa, nsa surveillance, ron wyden, surveillance

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

Senators To NSA: Your 'Fact Sheet' Isn't Factual; Can You Tell Us The Truth For Once?

from the look-at-that dept

We recently wrote about the NSA's highly questionable "talking points" about the various NSA surveillance programs that have leaked. Senators Ron Wyden and Mark Udall -- who have long been leading the fight to get people to understand how the NSA was spying on Americans -- have now sent a letter to NSA boss Keith Alexander saying that the "facts" in the NSA's "fact sheets" do not, in fact, appear to be factual, and asking him to correct the errors.

We were disappointed to see that this fact sheet contains an inaccurate statement about how the section 702 authority has been interpreted by the US government. In our judgment this inaccuracy is significant, as it portrays protections for Americans' privacy as being significantly stronger than they actually are. We have identified this inaccurate statement in the classified attachment to this letter.

We urge you to correct this statement as soon as possible. As you have seen, when the NSA makes inaccurate statements about government surveillance and fails to correct the public record, it can decrease public confidence in the NSA's openness and its commitment to protecting Americans' constitutional rights. Rebuilding this confidence will require a willingness to correct misstatements and a willingness to make reforms where appropriate.

Later in the letter, they also point to another "misleading" statement, amusingly using a letter that the Director of National Intelligence (DNI) sent to Wyden and Udall two years ago. This was back when they two were asking the DNI to at least reveal how many Americans had their info collected, and the DNI responded that "...it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed...." Now Wyden and Udall are using that line to show that the latest "fact sheet" must be wrong:

Separately, we note that this same fact sheet states that under section 702, "Any inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime." We believe that this statement is somewhat misleading, in that it implies that the NSA has the ability to determine how many American communications it has collected under section 702, or that the law does not allow the NSA to deliberately search for the records of particular Americans. In fact, the intelligence community has told us repeatedly that it is "not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority" of the FISA Amendments Act.

So, basically: were you lying to us then, or are you lying to us now?

We'll see what the NSA's response is, but I imagine it will likely involve more lying.

Filed Under: 215, 702, james clapper, keith alexander, mark udall, nsa, nsa surveillance, prism, ron wyden

Senators Wyden And Udall Say They've Seen No Evidence That NSA Surveillance Stopped Dozens Of Terrorist Attacks

from the because-it-probably-didn't dept

During a cybersecurity hearing yesterday in the Senate, NSA boss General Keith Alexander was asked a bunch of questions about the NSA surveillance scandal. At one point, he claimed that he didn't have an exact number of cases in which the dragnet of information collected had stopped terrorist activity, but that it was "dozens" and that he would provide more info in a classified session (held today). However, Senators Ron Wyden and Mark Udall -- both on the Senate Intelligence Committee, and both paying close attention to these issues -- have put out a statement today saying that they've seen no evidence of this and they'd like General Alexander to clarify.

"We have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence. Gen. Alexander's testimony yesterday suggested that the NSA’s bulk phone records collection program helped thwart 'dozens' of terrorist attacks, but all of the plots that he mentioned appear to have been identified using other collection methods. The public deserves a clear explanation," Udall and Wyden said. "We look forward to reviewing the analysis that the general has promised to provide showing how the intelligence community arrived at these numbers. In our view, a key measure of the effectiveness of the bulk collection program will be whether it provided any intelligence that couldn’t be obtained through other methods."

There's a big distinction in there that many defenders of the program -- both politicians and press -- keep glossing over. The question is not whether the data itself was ever used in terrorist investigations, but whether or not this particular dragnet program was necessary to obtain that information. Law enforcement has had legal means of getting specific information for decades without having to resort to collecting all information to sift through later.

Filed Under: keith alexander, mark udall, nsa, nsa surveillance, ron wyden
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