Privacy And National Security Concerns Play Second Fiddle To Administration's Attempts To Control The Narrative

from the privacy-violations-are-coming-from-inside-the-house! dept

Rep. Devin Nunes, who heads the House Intelligence Committee, has been all over the privacy/security map in recent weeks. He's publicly decried the supposed "illegal surveillance" of former National Security Advisor Mike Flynn while trying to avoid undercutting the NSA programs and presidential authority that make it all this spying possible.

His hypocrisy knows no bounds. Nunes has repeatedly suggested NSA spying activities (under Executive Order 12333) should receive even less oversight. Now he's complaining the spy infrastructure he wholeheartedly supports is too big and dangerous, now that it's resulted in Mike Flynn's departure.

But it goes even further than that. Nunes is utilizing an informal network of what he calls "whistleblowers" to leak him details of investigations. Then he immediately goes and discusses these investigations in public. Barton Gellman (who handled some of Snowden's leaks) points out just how far Nunes has gone in defending both Mike Flynn and Trump White House.

Three named officials—two Trump appointees and arguably his leading defender on the Hill—appear to have engaged in precisely the behavior that the president describes as the true national security threat posed by the Russia debate...

The offense, which in some cases can be prosecuted as a felony, would apply even if the White House officials showed Nunes only “tearsheet” summaries of the surveillance reports. Based on what Nunes has said in public, they appear to have showed him the more sensitive verbatim transcripts. Those are always classified as TS/SI (special intelligence) or TS/COMINT (communications intelligence), which means that they could reveal sources and methods if disclosed. That is the first apparent breach of secrecy rules. The second, of course, is the impromptu Nunes news conference. There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.

When communications of US persons is "incidentally" collected, the information is minimized and the names redacted. Gellman points out "customers" (other government agencies/officials) can ask for the names to be revealed. But the policies governing dissemination mean the NSA doesn't just hand out this info to anyone. The fact that Nunes knew whose communications were swept up along with the targets means the real breach of privacy isn't the NSA's incidental collection, but the unmasking of those incidentally-collected. That means the same White House that's so upset about Trump being spied on is the one asking for an unminimized copies of the collected communications.

The names could only have been unmasked if the customers—who seem in this case to have been Trump’s White House appointees—made that request themselves. If anyone breached the president’s privacy, the perpetrators were working down the hall from him. (Okay, probably in the Eisenhower Executive Office Building next door.) It is of course hypocritical, even deceptive, for Nunes to lay that blame at the feet of intelligence officials…

This raises an even more interesting question about what's going on at the White House. Officials are asking for unminimized reports on incidental collections. But for what reason? Gellman theorizes it may be some form of an unofficial backdoor search.

There is no chance that the FBI would brief them about the substance or progress of its investigation into the Trump campaign’s connections to the Russian government. Were the president’s men using the surveillance assets of the U.S. government to track the FBI investigation from the outside?

If so, it's an interesting way to obtain information a government agency (the FBI) won't share with you: get it from the intelligence agency that's feeding it to the FBI. If this is what's happening, it's another example of the Trump White House -- and those subservient to it -- ignoring national security rules to further their own ends. This abuse likely isn't unusual, but it's definitely hypocritical for those engaging in it to make comments about the sanctity of privacy and/or national security while doing damage to both.

Filed Under: backdoor search, classified info, devin nunes, donald trump, incidental collection, leaks, mike flynn, minimization, nsa, surveillance 12333

Rep. Devin Nunes' Hypocrisy On Display In 'Concerns' Over NSA Surveillance

from the let's-try-this-again... dept

We've talked about the astounding hypocrisy of Rep. Devin Nunes a few times in the past. He heads the House Intelligence Committee, which is supposed to be conducting "oversight" of the intelligence community, but has generally been a cheerleader for mass surveillance in recent years. Nunes, in fact, has regularly slammed any attempt to cut back on surveillance, to the point of actively misleading the public in making false claims about how NSA surveillance programs work. The hypocrisy became clear when Nunes flipped out following the firing/resignation of Mike Flynn as National Security Advisor, arguing that it was somehow unprecedented that an American's phone calls with Russian officials were recorded by the intelligence community. Of course, that suggests either near total ignorance of the programs he's supposedly in charge of overseeing, or just blatant political pandering.

And now it's getting worse. Reporter Katie Bo Williams got her hands on an interesting letter that Nunes, along with ranking member Rep. Adam Schiff, just sent to the heads of the CIA, NSA and FBI, continuing to dig in on the whole "recorded Mike Flynn" thing. The target now is Executive Order 12333, which we've spoken about quite a lot. That's the executive order signed by President Reagan, that more or less gives the intelligence community total free rein in conducting surveillance overseas. As an ex-State Department official revealed back in 2014, the vast majority of NSA surveillance actually is done under 12333, and it just uses other programs -- like Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act -- to fill in the gaps of what they can't get via 12333. Executive Order 12333, for example, was used to hack into Yahoo and Google's servers overseas, allowing the NSA to scoop up lots of info without any oversight by US courts.

Anyway, based on the letter that Nunes has sent, he's suddenly quite concerned about 12333. And this demonstrates his massive hypocrisy, because another letter he sent a few years ago has him arguing that there should be less oversight on 12333... but we'll get to that. This new letter suggests that the Flynn recording came under 12333, and so he's demanding all sorts of data on how 12333 is used on US Persons.

Of course, what's interesting here is that the Congressional intelligence committees have long stated that they don't really have much oversight into anything under 12333. Dianne Feinstein (who was a top member of the Senate Intelligence Committee) admitted in the past that the committees get zero insight into 12333 intelligence collection:

“The other programs do not (have the same oversight as FISA). And that’s what we need to take a look at,” she said, adding that her committee has not been able to “sufficiently” oversee the programs run under the executive order. “Twelve-triple-three programs are under the executive branch entirely.”

Feinstein has also said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”

Got that? Good. At least when Feinstein was bringing it up, she was bringing it up to argue that the Intel Committees should be getting more insight into what 12333 is used for.

However, Devin Nunes, apparently wanted it to be kept in the dark. And wanted the public kept in the dark. That's because I just received in a surprisingly well-timed FOIA response, a letter that Nunes, along with Senate Intel Committee boss Richard Burr, sent a letter to the Privacy and Civil Liberties Oversight Board (PCLOB) back in 2015, basically telling the PCLOB to stop looking into 12333, because it was outside its purview. As you may recall, after doing detailed reports on Sections 215 and 702, the PCLOB announced that it was going to do a detailed study on 12333 to determine if it was violating the privacy and civil liberties of Americans. While that was announced way back in 2014, nothing final ever came out -- and it's unlikely to ever come out because the PCLOB is effectively dead.

But Nunes and Burr were apparently so concerned that the PCLOB might find actual problems with 12333 and how it violates the rights of Americans, that they made it clear that the PCLOB should knock it off:

As we are sure you are aware, intelligence activities conducted under E.O. 12333 address a broad range of national security issues beyond counterterrorism, including significant and important foreign intelligence matters that fall well outside of the PCLOB's limited statutory charter. Many intelligence activities conducted under E.O. 12333 predate the creation of the PCLOB and were not within the scope that the 9/11 Commission or Congress envisioned when PCLOB was established. The purpose is clear and specifically defined by Congress.

We trust you will keep in mind the finite statutory authority as you move forward and work with the Intelligence Community to limit appropriately your review only to those matters which Congress has specifically authorized you to review.

In other words, just two years ago, Devin Nunes was telling the one body in the government specifically tasked with reviewing intelligence collection programs to see how they're being used on Americans, that they should stop doing that. And now, today, he's suddenly demanding to know how the intelligence community uses 12333 to spy on Americans -- as if it had never crossed his mind before that the program was used this way.

This is not effective oversight. This is a hypocritical joke by the name of Rep. Devin Nunes.

Filed Under: 12333, adam schiff, cia, devin nunes, executive order 12333, fbi, mike flynn, nsa, pclob, richard burr, surveillance

The Ousting Of Trump's National Security Advisor Shows Just How Dangerous 'Lawful' Domestic Surveillance Is

from the we-got-dirt-on-millions-of-Americans dept

Those who thought the domestic surveillance Ed Snowden exposed was perfectly acceptable and lawful are finding it much harder to stomach with Trump in charge. The Lawfare blog, which routinely hosts articles supportive of government surveillance activities, has taken on a new tone over the past few months. The lesson being learned: if a power can only be trusted in certain people's hands, then it really can't be trusted in anyone's. This belated realization is better than none, but one wonders if the drastic change in tone would have followed an election that put Hillary Clinton in the White House.

That's not to say the first month of Trump's presidency has borne any resemblance to a "peaceful transition of power." The federal government isn't just leaking. It's hemorrhaging. Underneath the recent ouster of Mike Flynn, Trump's former National Security Advisor, is something disturbing.

What's disturbing isn't the surveillance -- although in "normal" circumstances it might be. Flynn was dumped because recorded phone calls captured him discussing sanctions with Russian officials. This domestic surveillance isn't unheard of. The fact that this information -- including the content of the calls -- was leaked to the public is more notable.

Calls to foreign officials are fair game for US surveillance efforts. The last-minute removal of restraints on sharing unminimized US persons data/communications by the Obama administration just served to ensure Flynn's calls would end up in the hands of multiple federal agencies. The timing of the loosened restrictions is worth noting though, as Marcy Wheeler does in this post about the Flynn ouster.

Finally, remember that for a great deal of SIGINT, FBI wouldn’t need a warrant. That’s because Obama changed the EO 12333 sharing rules just 4 days after the IC started getting really suspicious about Flynn’s contacts with Russia. That would make five years of intercepts available to FBI without a warrant in any counterintelligence cases, as this one is.

But what Lawfare's Adam Klein is concerned with isn't the sharing of unminimized communications between agencies. As he points out in his post, all of that's perfectly legal. What he's more concerned with is the actions of the intelligence community, which has made all of this public.

[T]his case illustrates why surveillance law treats U.S.-person information with the same healthy fear we associate with nuclear waste and biohazard material—that is, with the vigilance reserved for things that are inherently dangerous if not closely guarded. As Eli Lake wrote this week in Bloomberg View, selective leaking of U.S.-person information “gives the permanent state” (or political appointees entrusted with the information) “the power to destroy reputations from the cloak of anonymity.” Even if not leaked to the press, such information can be misused: J. Edgar Hoover and his subordinates infamously used salacious information gleaned from FBI surveillance of Martin Luther King, Jr., to pressure King to retreat from public life.

That's what's happening and that's a cause for concern. The NSA and others have always had these powers, but we were assured they wouldn't be abused. In this case, the abuse isn't in the collection or dissemination (all of it now "lawful"), but in the use of leaked information to kick out a National Security Advisor.

Trump has made few friends in the intelligence community since he became president, comparing the CIA to Nazis and making comments about unprofessional behavior. The problem for Trump is he's fighting with agencies particularly well-armed to take him down. But that's not what we want from our intelligence agencies. They're not tools of government accountability. They're tools for totalitarianism restrained only by oversight and a rigorous set of rules. (I mean, in theory...) But the IC appears to be ignoring the checks and balances put in place to guard against the destruction of the government's head by its body.

It's one thing to cheer for the public flailing of a President you don't like. It's quite another to cheer on the dangerous, easily-abusable network of domestic surveillance that makes it possible.

So, the issue here is more the leaks than the surveillance. The surveillance has its own problems, but the willingness to leak information damaging to US persons -- even if it prevented someone who possibly shouldn't be a National Security Advisor from keeping his job -- is a disturbing indicator of just how much power these agencies (at least 16 of them) now wield, thanks to information sharing.

The other problem is the hypocritical way Trump and his supporters are dealing with the leaked info. Trump wants an investigation to uncover the source of the leaks. Fair enough (albeit somewhat hypocritical, given his love of Wikileaks...). But the House Oversight Committee and Trump himself have no interest in taking a deeper look into the allegations against Mike Flynn. Nonsensically, House Oversight Committee head Devin Nunes said the recording of the phone calls was itself "disturbing." This is something someone involved in intelligence oversight should already know is a perfectly lawful interception under statutes he helps shape and define.

It's a dangerous time to be a whistleblower, as the administration appears far more interested in going after leaks it doesn't like than potentially-illegal behavior by its own staff. And it's just as dangerous to be the target of intelligence committee animosity. No more dangerous than it's always been, but in recent days, we've been given a pretty clear picture of how quickly lawful surveillance can ruin a person's life.

Filed Under: abuse, domestic surveillance, mike flynn, nsa, politics, surveillance