NSA - Ain't Nobody Safe

The NSA has confirmed in an article from The Guardian that a loophole in the restrictions against domestic spying was employed to search US citizens communications without any warrant.  This should probably come as no surprise given that NSA will use any opening to do whatever they like to anybody.  Senator Ron Wyden initiated the question, finally responded to by James Clapper in typical elaborate double-talk.

“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote in the letter, which has been obtained by the Guardian.
“These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment.”

 Ron Wyden and Mark Udall responded.

On Tuesday, Wyden and Udall said the NSA’s warrantless searches of Americans’ emails and phone calls “should be concerning to all.”
“This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the fourth amendment requires that the government secure a warrant or emergency authorisation before monitoring his or her communications. This fact should be beyond dispute,” the two senators said in a joint statement.
They continued: “Today’s admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under section 702 to find the communications of individual Americans."

NSA Phone Metadata Dragnet Ruled "Legal and Necessary"

A federal court judge ruled that the NSA was perfectly within its rights to collect the phone records of every US citizen in an absurd ruling against the ACLU.  The ACLU will appeal the dismissal of their lawsuit.  As MSNBC reports,

When Judge William H. Pauley ruled that the National Security Agency’s metadata program was lawful on Friday, he argued that there was no significant dispute about “the effectiveness of bulk telephony metadata collection.”
Pauley–who issued his ruling from a courthouse less than two miles from where the twin towers once stood–then offered a series of examples cited by the NSA to bolster their claims that the program is effective, all of which have been “seriously disputed.”
Only four plots among the fifty-four the NSA claims to have helped foil have been made public. Pauley cited three of those four plots in arguing that the metadata program was effective, but journalists and legislators have picked already picked those examples apart. ProPublica published a piece in October by Justin Elliott and Theodoric Meyer noting that in each of the three cases Pauley mentions, there were serious doubts as to whether or not the NSA was exaggerating either the plot itself or the impact of the program.

 Two Democratic members of the Senate intelligence committee, Ron Wyden of Oregon and Mark Udall of Colorado, said in July that the NSA has “significantly exaggerated this program’s effectiveness,” and warned that “assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value.”
Aside from Leon and federal legislators, there’s one more entity that has disputed the usefulness of the NSA metadata program: The review board appointed by the White House itself. In their report, the board concluded that bulk collection of metadata “was not essential to preventing attacks.” After the report was released, one of the review board members, Geoffrey Stone, a University of Chicago law professor, told NBC News there was no evidence the program had thwarted any attacks.

Ron Wyden and the NSA Steamroller

“We’re just going to keep fighting this battle. It’s going to be a long one.”
Ron Wyden has his hands full in trying to rein in the NSA steamroller, which has powerful allies in Congress, such as Dianne Feinstein, Chair of the Senate Intelligence Committee, and Saxby Chambliss a Georgia Republican on the same committee.  Wyden has labeled their ilk the "Business as Usual Brigade", and true to form they steamrolled a NSA "reform" bill that just continues business as usual with a few weak tweaks to existing practice.

The bill is a direct challenge to one introduced Tuesday by senator Patrick Leahy that would end domestic phone-records collection. It was also opposed by leading intelligence committee member Mark Udall, who said it did not go far enough.
"The NSA's invasive surveillance of Americans' private information does not respect our constitutional values and needs fundamental reform, not incidental changes. Unfortunately, the bill passed by the Senate intelligence committee does not go far enough to address the NSA's overreaching domestic surveillance programs," Udall said.
Another Democratic member of the committee, Ron Wyden, said the bill maintains "business as usual" and "remains far from anything that could be considered meaningful reform". 
Wyden suggested that recent concern about NSA spying on foreign leaders had distracted from the real focus on mass domestic surveillance in the US. “The statements that American intelligence officials have made this week about collecting on the intentions of foreign leadership, that’s consistent with the understanding I’ve had for years, as a member of the intelligence committee,” he said.
“That has implications for foreign policy. My top priority is ending the mass surveillance, digital surveillance, on millions and millions of law-abiding Americans.”
Feinstein unexpectedly announced on Monday that she was “totally opposed” to the foreign leader spying of the sort the NSA conducts of German chancellor Angela Merkel. Feinstein has been a staunch supporter of the NSA’s bulk collection of Americans’ phone records.
“Americans are making it clear, that they never – repeat never – agreed to give up their constitutional liberties for the appearance of security,” Wyden said. “We’re just going to keep fighting this battle. It’s going to be a long one.”

NSA Circus, Nobody Can Keep Their Story Straight

The story of NSA spying on Angela Merkel and other friendly heads of state is a prototypical one of Washington circus, which has prompted a new round of "Reviews" ordered by President Obama and Dianne Feinstein of the Senate Intelligence Committee.  According to the Guardian and CNN  there is a major fight brewing in the Administration over who is throwing whom under the bus.  He either knew and is denying it or he didn't know, which most people find not credible.  He either found about it last summer and ordered it stopped, or he let it go on.  Incredible stuff, but in my view we won't find out from any of the current circus performers, they all have no credibility.  I wouldn't trust anybody's word unless it came from Ron Wyden or Mark Udall, and so far they aren't saying.

First CNN.

It's plausible that Obama wouldn't know about specific surveillance targets, said CNN National Security Analyst Fran Townsend, a member of the CIA external advisory board.

She said overall intelligence collection priorities are well-known by the White House. "Specific targets, however, (like) Angela Merkel's cell phone, are not the sort of thing discussed with the President of the United States."

No one should expect the President to know everything the NSA is doing, said Julian Zelizer, a professor of history and public affairs at Princeton University.

"But when you're talking about the surveillance of world leaders, and an issue that's been controversial for a while now, you would expect that there's some knowledge either by the President or people surrounding him. ... I do think there's surprise that this was off the radar in the inner circles of the White House."

And from the Guardian,

Did President Obama know about US spying on its friends, apparently going back more than a decade in the case of Angela Merkel? The answer is either "Of course he did, idiot" or "It's plausible he didn't, actually" – depending on whom you ask.
The White House message is clear: the president was in the dark.
The Wall Street Journal quoted an anonymous administration official on Sunday saying that the president didn't find out until this summer about spying on allies and he immediately ordered it stopped. The Washington Post published a corroborating report Monday.
Obama himself told ABC News on Monday that the White House merely gives the intelligence community "policy direction":

I'm the final user of all the intelligence that they gather. But they're involved in a whole wide range of issues.
We give them policy direction. But what we've seen over the last several years is their capacities continue to develop and expand, and that's why I'm initiating now a review to make sure that what they're able to do doesn't necessarily mean what they should be doing.

To members of the intelligence community, the president distancing himself in this way from data collection that fed his daily briefings is a betrayal. The intelligence officials involved aren't taking it sitting down, either. "Current and former US intelligence officials" are talking to Ken Dilanian of the Los Angeles Times, among others. The White House "signed off on surveillance targeting phone conversations of friendly foreign leaders," he reports:

Obama may not have been specifically briefed on NSA operations targeting a foreign leader's cellphone or email communications, one of the officials said. 'But certainly the National Security Council and senior people across the intelligence community knew exactly what was going on, and to suggest otherwise is ridiculous.'

Wyden Proposes Surveillance Limits

Ron Wyden issued a press release Tuesday on new legislation proposed to limit the most objectionable powers the government has assumed that led to mass spying on all American citizens.

Tuesday, September 24, 2013
Washington, D.C. – U.S. Senators Ron Wyden (D-Ore.), Mark Udall (D-Colo.), Rand Paul (R-Ky.) and Richard Blumenthal (D-Conn.), will hold a press conference on Wednesday, Sept. 25 at 4 pm EDT to unveil principles for comprehensive surveillance reform. Their approach will end the bulk collection of phone records of law-abiding Americans, close the “back-door searches” loophole that allows the government to search for Americans’ communications without a warrant, and create an independent constitutional advocate to argue significant cases before the Foreign Intelligence Surveillance Court.

Wyden also had a lot to say about the operation of the Foreign Intelligence Surveillance Court (FISC) as well, in an article published in Ars Technica.

Further, the Oregon senator said that the FISC needs to be far more open than it has been previously. Until this year, nearly all FISC opinions and orders had been secret. That has changed recently, as lawsuits brought by the Electronic Frontier Foundation and resulting pressure from the Edward Snowden leaks forced a limited number of new documents to be exposed.
“[FISC's] rulings and opinions need to be made public in order for public confidence to exist,” he said. “Secret courts were one of the reasons that we rebelled against the English. Star chambers became a symbol of our reason for revolution, and secrecy should be really an anathema to our judicial process.”
Wyden and his colleagues also pushed the idea of a “constitutional advocate,” or ombudsman, who would act as the government’s judicial adversary in a FISC hearing. He also addressed a likely rebuttal from the intelligence community, that valuable information may be lost if the judicial process is bogged down by appeals.
“There should be no delay from a constitutional advocate because the review can happen while the warrants are ongoing,” he said. “That appeal can be to SCOTUS or to [other] courts of appeals, to [the FISC of Review]. The appeal right now is nonexistent because only the government is represented. The constitutional advocate would have as its clients the rights of American citizens.”

He's got my vote.

NSA Credibility Problem

On Tuesday 9/10/2013 the government finally declassified FISA and NSA court documents that reveal the agency lied to the court and Congress about their activities for years, and perpetuated those lies until Edward Snowden blew the whistle on them.

After years of government stalling and stonewalling, they finally released data to both the ACLU and Electronic Frontier Foundation who had filed FOIA requests on the court rulings.  Both the EFF and ACLU have had only a few hours to examine the documents, but here are their initial comments.

ACLU

“These documents show that the NSA repeatedly violated court-imposed limits on its surveillance powers, and they confirm that the agency simply cannot be trusted with such sweeping authority,” said Alex Abdo, staff attorney with the ACLU National Security Project. “The abuses revealed in these documents are alarming but also predictable. These violations are the inevitable result of allowing the NSA to assemble a vast database of sensitive information about every American. The documents provide further evidence that secret and one-sided judicial review is not an adequate check on the NSA’s surveillance practices.

EFF

Clapper's Continued Trouble with the Truth
On June 6, just days after the Guardian newspaper published the first of many articles on NSA spying, Director of National Intelligence Clapper attempted to reassure the public that the NSA telephone record program was limited and restrained. "The information acquired does not include ... the identity of any subscriber."
Documents released today show this to be false.  In an August 3, 2009 declaration to the FISA court, NSA Director Keith Alexander wrote that "the collected metadata thus holds contact information that can be immediately access as a new terrorist-associated telephone identified are identified."  While it is not surprising that the NSA can correlate a phone number to a person (phone book technology has been available for some time), here we have it in black and white that Dir. Clapper attempted to mislead the public.

The NSA's Word Games Confuse Even the NSA
As we've noted time and time again, the NSA plays with language, using words in non-standard ways.  After not reporting violations to the FISC for years, the NSA had this explanation: "there was never a complete understanding among the key personnel who reviewed the report ... regarding what each individual meant by the terminology used in the report."  The NSA presents this as an excuse why it misled the court.
Want to Know Why the NSA gave Raw Access to the CIA, FBI and NCTC in violation of a Court Order?
So did the Court, who ordered the NSA to explain the violation of its prior order. So did we. However, you're not going to find out today. Four pages of NSA Director Alexander's response to this question are redacted.

The Guardian published some analysis of the documents.

A judge on the secret surveillance court was so disturbed by the National Security Agency's repeated violations of privacy restrictions that he questioned the viability of its bulk collection of Americans' phone records, according to newly declassified surveillance documents.

Darrell Issa, the California Republican who chairs the powerful House committee on oversight and government reform, said that he backed legislation to "permanently cease" the bulk phone records collection.
"Government actions that violate the constitution cannot be tolerated and Congress must act to ensure the NSA and the intelligence community permanently cease such acts and hold the appropriate individuals accountable," Issa wrote to House majority leader Eric Cantor on Tuesday.

Wyden "Just the Tip of a Larger Iceburg"

The latest NSA documents revealed by Edward Snowden show the NSA violated it's own rules thousands of times, with reactions from the NSA and Dianne Feinstein (no big deal) to Ron Wyden and Mark Udall "Just the Tip of a Larger Iceburg".  I think I'll go with Wyden on that conflict of opinion.

"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.
"We appreciate the candor of the chief judge of the Foreign Intelligence Surveillance Court regarding the court's inability to independently verify statements made by the executive branch. We believe that the court is not currently structured in a way that makes it an effective check on the power of the executive branch. This highlights the need for a robust and well-staffed public advocate who could participate in significant cases before the court and evaluate and counter government assertions. Without such an advocate on the court, and without greater transparency regarding the court's rulings, the checks and balances on executive branch authority enshrined in the Constitution cannot be adequately upheld."

Wyden Former Chief of Staff Speaks on Spying

Jennifer Hoelzer was Wyden's Chief of Staff during the years that Wyden was trying to expose the NSA practice of warrantless surveillance, and she wrote an Op-Ed for Techdirt, a progressive news site where she recounted the many years Obama and NSA gagged the discussion, or even the mention, of their warrantless surveillance despite Wyden repeatedly requesting a public dialog.  Ron Wyden and Mark Udall then put out a statement that you ain't seen nothin yet, there's a lot more to come.

"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.
"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.

Top Ten Absurd Statements about Spying

The national dialog being conducted by the defenders of NSA spying seems to rely on the assumption we don't have any intelligence, it is so littered with absurdly illogical false statements.  Since everyone seems to enjoy Top Ten lists, here's mine.

10. What the NSA is doing is legal.  You have to follow a trail of nitpicking twists of logic to give this statement any credence.  In short, acquiring information by spying isn't really spying if nobody knows about it or bothers to look at the data.  The NSA record of every phone call made in the US is deemed to not legally exist if nobody uses it.

9.  9/11 Could have been prevented if this had been in place.  Those making the argument have ignored a key aspect of historical record.  U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al Mihdhar, long before 9/11 and had the ability find him, but they failed to do so.
"There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar," says former Senator Bob Graham, the Florida Democrat who extensively investigated 9/11 as chairman of the Senate's intelligence committee.

8.  NSA surveillance disrupted "over 50" Terrorist plots.  There have been all sorts of numbers claimed, ranging from dozens (refuted by Mark Udall and Ron Wyden here) to maybe 10 in the US.  They cite David Coleman Headley, a key plotter in the deadly 2008 Mumbai attacks, but ProPublica did extensive research that shows NSA missed him entirely for 7 years until British Intelligence told them he was up to no good.

7.  We need to trade some Civil Liberties to fight Terrorism.  This ignores the fact that we are governed entirely by the Constitution, no law or policy can legally violate any of its provisions.  Period.  As argued in this article, we can not "trade" any violation of the Constitution without amending it, but that is precisely what the government is arbitrarily and secretly doing.

6.  All 465 Members of Congress were fully briefed on NSA spying.  Funny, other members of Congress, including one of the authors of the Patriot Act, Rep. Jim Sensenbrenner, R-Wis expressed outrage and concern about the data collection.

5.  President Obama says the NSA and FISA policies are "Transparent".  Well, maybe it is transparent to him, but not much of anyone else.  It operates in total secrecy, in fact anyone who is included in that "transparency" is prohibited from revealing anything about it, like Ron Wyden and Mark Udall.

4.  Edward Snowden does not classify as a Whistleblower.  Apparently whistleblowers can only blow the whistle on someone the current administration doesn't like.  Daniel Ellsberg thinks he's a hero, and we need more patriots like him. Ellsberg did a similar act in revealing the Pentagon Papers in 1971.

3.  Eric Holder defends the First Amendment right of Freedom of the Press.  Holder said he would never contemplate prosecuting reporters for publishing classified material, but his DOJ named Fox News reporter as a possible co-conspirator for publishing a news story, and they also bugged the Associated Press offices for 2 months.

2.  NSA spying has been effective in protecting US against Terrorism.  Boston Marathon bombers didn't seem to have any problems.

1.  The Government is concerned with preserving our Civil Rights.  The ACLU doesn't think so, and neither do I.  President Obama said he welcomed the dialog on the subject, while keeping it a close secret to prevent the possibility of any dialog.  Absurd.