NSA Director Keith Alexander: The FBI Does the Domestic Collection

Congressman Hank Johnson asked NSA Director Keith Alexander about James Bamford’s Wired article describing the data storage and analysis center in UT. Unfortunately, rather than ask Alexander about these activities–storage and analysis–Johnson asked Alexander about data collection. Here are excerpts of the exchange:

Johnson: Does NSA have the ability to identify Cheney bashers based on the content of their emails?

Alexander: No. Can I explain? NSA does not have the ability to do that in the United States. In the United States we would have to go through an FBI process–a warrant–to serve it to somebody to actually get it.

Johnson: But you do have the capability to do it?

Alexander: Not in the United States. We’re not authorized to collect nor do we have the equipment in the United States.

Johnson: “NSA’s signals intercepts include eavesdropping on domestic phone calls and inspection of domestic emails.” Is that true?

Alexander: No, not in that context. I think what he’s trying to raise is are we gathering all the information on the United States? No, that is not correct.

Johnson: What judicial consent is required for NSA to intercept communications and information involving American citizens?

Alexander: Within the United States, that would be the FBI lead.  If it was foreign actor in the United States the FBI would still have the lead and could work that with the NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order and a court would have to authorize it. We’re not authorized to do it nor do we do it.

Note that Alexander never denies that such capabilities exist. Rather, he says that FBI would intercept communications–with a court order–and FBI would search for certain content–with a warrant.

Also note, all of Alexander’s responses were in the present tense: he doesn’t say the NSA hasn’t done these things. Only that the NSA is not now authorized to do them and does not do them.

We know several things about the government’s collection in the US. First, the telecoms own the equipment–they’re the ones that do the intercepts, not FBI or NSA. Second, the FBI can and does get bulk data information from telecoms and other businesses using Section 215 of the PATRIOT Act.

I will have more to say about this later–until then, read this post and this post as background.

There is a great deal of circumstantial information to suggest that after the 2004 hospital confrontation–which was in part a response to Congress prohibiting any DOD use of data mining on Americans–chunks of the illegal wiretap program came to be authorized under Section 215 of the PATRIOT Act, which authorizes FBI data collection.

There’s nothing General Alexander said in this non-denial denial that would conflict with the notion that FBI collects data the telecoms intercept using Section 215 of the PATRIOT Act.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

33 replies
  1. MadDog says:

    Good parsing is such a joy to behold and your post here matched exactly what I was thinking. I particularly liked General Alexander’s sleight-of-hand diversion here:

    “…No, not in that context…”

    It’s true General Alexander, context is everything! And so, repeatedly hiding the truth in plain sight makes Congresscritters feel all warm and fuzzy.

  2. lefty665 says:

    Expect you’re right on section 215, but that may be the smallest part of the issue.

    What’s an intercept? Are mirrors of AT&T switches like room 641a intercepts? Look at the parsing of “domestic”. Are they within the US? Look also at the surprising number of “domestic” US email servers that are located in Canada. That traffic crosses our borders twice. Is it “domestic”? Is it protected?

    What reason is there to expect that any RF communications are protected? That gets all cell phones and smart phone networking.

    There’s a long history with lots of examples. A simple one is the microwave dish installations that have been set up beside telco satellite uplinks for more than 30 years. Read Bamford, “The Shadow Factory” and “The Puzzle Palace”, Kahn “The Codebreakers”, and others.

    Agency folks have parsed congressional testimony very carefully since 1952. Ask the right question, get the right answer. Ask an unwitting question, get a dumbf*** answer.

  3. Bob Schacht says:

    Am I reading him wrong? He says we’re not doing these things “in the United States,” but could we be piping the raw info flow to Canada for analysis? Like, say, Toronto? At any rate, I think close parsing is needed.

    Bob in AZ

  4. orionATL says:

    eventually this spying crap will fall of its own weight.

    until then, there will be ever more egregious excesses.

    ever more expansion of domain.

  5. orionATL says:

    i do wonder from time to time if our continuously expanding electronic spying bureaucracy may be going unchecked by virtue of the information it has collected on congresscritters.

    nah, they wouldn’t dare.

    would they?

  6. William Ockham says:

    Let me translate this:

    Johnson: Does NSA have the ability to identify Cheney bashers based on the content of their emails?

    Alexander: No. Can I explain? NSA does not have the ability to do that in the United States. In the United States we would have to go through an FBI process–a warrant–to serve it to somebody to actually get it.
    [Translation: Yes, but let me bamboozle you into thinking the answer is no. Our corporate partners do all the dirty work inside the U.S. We have a blanket warrant that lets that happen.]
    Johnson: But you do have the capability to do it?

    Alexander: Not in the United States. We’re not authorized to collect nor do we have the equipment in the United States.
    [Yes, our lackeys, er, partners do the collection on their own equipment.]

    Johnson: “NSA’s signals intercepts include eavesdropping on domestic phone calls and inspection of domestic emails.” Is that true?

    Alexander: No, not in that context. I think what he’s trying to raise is are we gathering all the information on the United States? No, that is not correct.
    [Yes, but I’ll pretend to misunderstand the question so I can say no.]

    Johnson: What judicial consent is required for NSA to intercept communications and information involving American citizens?

    Alexander: Within the United States, that would be the FBI lead. If it was foreign actor in the United States the FBI would still have the lead and could work that with the NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order and a court would have to authorize it. We’re not authorized to do it nor do we do it.
    [Our FBI lackeys have taken care of what legal niceties remain after the gutting of FISA. I’m going to keep talking about collection so I can avoid the real issue.]

  7. lefty665 says:

    @William Ockham:

    Nice analysis. The upshot being that Mr. Johnson was not prepared to ask witting questions. Suppose he enjoys setting himself up to be laughed at?

  8. orionATL says:

    @lefty665:

    you’re wrong. johnson knows what he is doing.

    he asked the right questions; he is not allowed to torture the witness in order to deal with the latter’s evasion.

    alexander’s verbal evasions are revealing. what william o. did was translate those evasions for us.

    both johnson’s questions and alexander’s answers are now on the record for future reference.

  9. emptywheel says:

    @orionATL: Right–but his answers are about collection, and as WO notes, between FBI and the telecoms, they NSA doesn’t DO collection. But they do do stuff with data once it is collected. That’s teh question that needed asked.

  10. MadDog says:

    As an update to NSA Director General Alexander’s pretense during yesterday’s Congressional hearing, James Bamford responds over at Wired:

    NSA Chief Denies Domestic Spying But Whistleblowers Say Otherwise

    “In a rare break from the NSA’s tradition of listening but not speaking, NSA chief General Keith Alexander was grilled Tuesday on the topic of eavesdropping on Americans in front of a House subcommittee.

    The questioning from Rep. Hank Johnson (D-Georgia) was prompted by Wired’s cover story this month on the NSA’s growing reach and capabilities, but leave Americans with as many questions about the reach of spy agency’s powers as they had before Alexander spoke.

    Alexander denied, in carefully parsed words, that the NSA has the power to monitor Americans’ communications without getting a court warrant…”

  11. lefty665 says:

    @orionATL:

    “he asked the right questions; he is not allowed to torture the witness in order to deal with the latter’s evasion” Pull the other other one, it’s got bells on.

    “alexander’s verbal evasions are revealing.” Uh, they were not revealing. That’s why you call them “evasions” instead of “forthrights”.

    “both johnson’s questions and alexander’s answers are now on the record for future reference.” One more textbook piece for future DIRNSAs to study to show how easy it is to blow off congresspeople. Parse carefully, do not lie, answer the question as you would have preferred it to be asked. Chances are very high the politicians are not well informed or inclined to pursue a line of questioning to get a real answer.

    Johnson did not learn squat. Alexander put nothing new on the record. However, due to Johnson’s inane questioning Alexander was able to add another course of uncontested obfuscation to the wall of disinformation that surrounds com/info int in the US today. He gave the guys back at Meade a good laugh too.

  12. orionATL says:

    @emptywheel:

    johnson’s questioning seems to me textbook non-hostile congressional questioning – you ask a question, you follow up, you let the witness say what he has to say, and you move on (unless you are the chairman and allot yourself unlimited time :} ).

    johnson is not even remotely a simpleton; he is not the type of congressman to be “bamboozled”.

    if he asked about “collection”, it’s reasonable to assume that that is what interested him.

    i would be surprised in this matter if johnson did not share strategies with wyden and udall.

  13. orionATL says:

    @lefty665:

    that’s just baloney; particularly this inane comment: “alexander’s verbal evasions are revealing.” Uh, they were not revealing. That’s why you call them “evasions” instead of “forthrights”.

    do you really believe that you are one of the gifted few clever enough to properly intrepret alexander’s words.

    alexander’s style of answering congressional questions in endemic in washington and has been for decades.

    both using that style of anguage and interpreting it are a well-developed art, which is why this comment of yours seems so naieve:

    “both johnson’s questions and alexander’s answers are now on the record for future reference.” One more textbook piece for future DIRNSAs to study to show how easy it is to blow off congresspeople. Parse carefully, do not lie, answer the question as you would have preferred it to be asked. Chances are very high the politicians are not well informed or inclined to pursue a line of questioning to get a real answer.

  14. orionATL says:

    @orionATL:

    not that it would be of much interest, but just for the record the “title” of the hearing goes something like this:

    Chief Information Officer Teresa Takai; Commander, U.S. Cyber Command Army Gen. Keith Alexander; and Assistant Secretary of Defense for Global Strategic Affairs Madelyn Creedon testify at a hearing of

    the House Armed Services Committee, Subcommittee on Emerging Threats and Capabilities,

    on the fiscal 2013 budget request for information technology and cyber operations programs…, Rayburn House Office Building.

  15. emptywheel says:

    @orionATL: I don’t see where I said he was a simpleton.

    That said, the proper follow-up question is whether the NSA is involved in other roles. Johnson’s on HJC–he ought to have at least a hint of the stuff FBI is doing with Section 215. He ought to know that the telecoms are doing this (as the original article made clear).

    It’s not easy pinning these assholes down. But it does take some attentiveness to language, more than Johnson showed here.

  16. lefty665 says:

    @orionATL:

    “do you really believe that you are one of the gifted few clever enough to properly intrepret alexander’s words?” No I do not.

    Emptywheel and Wm Ockham did a very nice job on Alexander’s testimony, and I gave them both props. While I do not pretend to their level of insight, it is not rocket science to see that he was unresponsive. You seem to see value in having that non-testimony testimony that escapes me.

    As bad as the Bush years were, it seems we’re worse off now. At least with a Repub in office some of the Dems were willing to ask hard questions. Damn few are with a Democratic administration, and we’re going to miss Dennis. It is hard to think of an area where the Obama administration has not been worse than Bush. Those issues are covered here regularly.

    I hang around here because it’s mostly bright folks, with informed opinions, few partisan trolls, a refreshing absence of flame wars and shared appreciation of single malt scotches.

    If Johnson et al are not dumb, and I naively accept your assurance that they are not, then their failure to put the people of this country, the Constitution and Bill of Rights before partisan hackery is malfeasance rather than non. IMnaieveHO.

    We’re fucked. I’m old enough that there’s likely enough momentum in the system I’ll be able to peacefully dodder off to the grave. But the whippersnappers are in a world of trouble and it is getting worse by the day. If Democrats are not willing to stand for anything, who is?

  17. orionATL says:

    @emptywheel:

    you didn’t; nor do i contend you did.

    the triggering reference was from friar will’x comment:

    “…actually get it.
    [Translation: Yes, but let me bamboozle you into thinking the answer is no.”

    as for:

    ” Johnson’s on HJC–he ought to have at least a hint of the stuff FBI is doing with Section 215.”

    neither of us can say what johnson knows and doesn’t know. he may be badly informed, etc., etc.,

    but that would be very uncharacteristic of the congressman i know. he is a congressman who seems more sensitive than most to the erosion of civil liberty in this country.

    “…It’s not easy pinning these assholes down. But it does take some attentiveness to language, more than Johnson showed here…”

    i could not agree more with the first sentence. that is one of the great gifts you display here at emptywheel.

    as for that second sentence, neither you nor i know what was in johnson’s mind. he could have been badly informed, asleep at the switch, “bamboozled”, etc., or he could have had a different intent than you would wish or expected, e.g., could have been part of a demo tag team each with questions to ask.

    all i have to contribute here is my very positive perceptions of johnson in general, including that he is a sharp guy and he cares about civil liberties in a way many, i’d say most, dem congresscritters do not.

  18. orionATL says:

    @lefty665:

    “… “do you really believe that you are one of the gifted few clever enough to properly interpret alexander’s words?” No I do not. …”

    permit me a follow-up question:

    do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?

    rather than going around in accusatory circles, the best i can say of your comments here is that i found your comment at #3 very interesting and passionate. i share that passion.

  19. Bob Schacht says:

    @orionATL:

    Johnson’s questioning seems to me textbook non-hostile congressional questioning – you ask a question, you follow up, you let the witness say what he has to say, and you move on

    Well, this is true for congressmen who are mere mouthpieces for their staffs, who can read a script but not pay attention to what they’re being told. A good congressman, however, would pay attention to the answers he was getting and, if necessary, depart from his script to follow up. You can always submit those other questions to be answered later.

    Bob in AZ

  20. lefty665 says:

    @orionATL:

    “do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?” I may be naieve, but I’m not dumb enough to answer that question.

    I do take Boehner’s comments last week to the effect that congress is a cross section of America. He’s got far more first hand experience than I do. It was also his opinion that some of his colleagues were not too bright. Considering his party, I expect he knows whereof he speaks. He must be extraordinarily frustrated to have spoken so plainly.

    I have noticed that a lot of congresspeople are lawyers. As with good lawyers, I would expect them to have some sense of what the answer is before asking the question. From that point it is not too hard to match to sample. “Is the answer I got responsive to my question, and how does it square with what I know?” I expect there are a lot of people on Capitol Hill, and elsewhere, who do that routinely. It is not particularly clever or “art” as you believe, just pretty basic logic.

    What inspired me to comment originally was emptywheel’s analysis that Johnson’s questions were not very great, and that Alexander’s answers were even further off track. They very quickly got a long long way away from Bamford’s article about NSA and onto more general turf that focused on the poor benighted FBI. Johnson failed miserably to follow up and gave Alexander both a wonderful forum and a free pass to propagate the domestic intelligence cover story.

    The segue from NSAs national technical means data vacuum juggernaut and growing real time/predictive analysis behemoth to focus on the FBIs mini hoover and 8 ball was startling.

    You tell me Johnson is bright, a good Dem, and coordinates with leadership. If that is the case, then on second thought it seems more likely this was a Dem setup to deflect attention from Bamford’s story about the huge new NSA complex in Utah and its capabilities.

    Thank you for providing the information and asking the question that caused me to think through the process again. Humm, where would that put someone who defends Johnson and is pleased to have Alexander’s answers on the record for future reference? Curious. Who did you say you worked for?

  21. orionATL says:

    @lefty665:

    you really are a well-intentioned moron, lefty665.

    you comment is pure rubbish.

    for example, take this comment (please!):

    “do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?” I may be naive, but I’m not dumb enough to answer that question…”

    it’s not that you are “not dumb enough”, it’s that you are dishonest enough to evade my question – using the same evasive tactics and playing the same sort of dishonest verbal games you were excoriating alexander for.

    clearly you love your alienated viewpoint. so – give it a hug and take it to bed with you. you may find a use for it someday.

  22. bmaz says:

    Um, let us be nice to our fellow commenters. I think Lefty has some decent points there. For one, the part about followup questions. Not just here, it is the scourge of Congressional hearings in general. It is rare that Congresspeoples actually are smart enough, and well enough prepared to give up the demagoguery and ask piercing questions. But even when they do, there are hardly ever appropriate followups propounded. Any good cross examiner knows that initial questions are just the set up, the value is always in the followups.

    There was a shuck and jive, bait and switch, done by Alexander. Lefty is quite correct about that.

  23. orionATL says:

    @bmaz:

    i am normally quite nice to my fellow commenters. however, rarely i am not

    lefty got what he asked for.

    he did make some good points, as i noted.

    “there was shuck and jive”

    that was never in doubt, nor disputed anywhere.

    the issue is whether a normally well-prepared congressman who is smart and caring was somehow “incompetent/bamboozled” at this hearing.

    that is possible, but i doubt it and i said so.

    the focus should have been on alexander, not johnson. johnson asked important questions of the general.

  24. lefty665 says:

    @bmaz:

    Thanks bmaz.

    I’d add to your comment (and hopefully will not precipitate more vitriol).

    It is always hard for a generalist to extract information from a specialist when the specialist is not particularly interested in being forthcoming.

    That’s been pretty much the relationship between congress and NSA for a long time. It is even harder in a public hearing where much of the information is classified.

    But as you note, that is no excuse for failing to be prepared to begin with, or witting enough to follow up. My esteemed detractor has something right. Most congressional questioning is perfunctory, question, response, half hearted followup, move on. However, I do not share his reverence for the practice.

    I do not admire Alexander’s performance, but I respect it. He accomplished his mission effectively, and got a twofer out of it. Not only did he draw attention away from his agency’s capabilities, he put a thumb in Mueller’s eye following his puffery about increased FBI capabilities earlier this month.

    Could Johnson have been an accessory before the fact too?

  25. orionATL says:

    @lefty665:

    “…I’d add to your comment (and hopefully will not precipitate more vitriol)…”

    “vitriol”, lefty, seems clearly here defined “criticisms others have about my arguments”?

    using that term makes you sound like one of those hyper-pious trolls (“oh, such vitriol, how could it have happened to me after all of my earnest, honest comments”).

    since you have raised this conversation from the dead,

    let me ask you, again, why you were so evasive at you #25, as pointed out in my #26.

    your comment at #25 was bald evasion – just like alexander’s comments.

  26. lefty665 says:

    @orionATL:

    That’s Mr. 665 to you.

    You apparently do not understand the difference between evasive and responsive any more than you value agreement between subject and predicate or the shift key.

    Your question: “do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?”

    My response: “I have noticed that a lot of congresspeople are lawyers. As with good lawyers, I would expect them to have some sense of what the answer is before asking the question. From that point it is not too hard to match to sample. “Is the answer I got responsive to my question, and how does it square with what I know?” I expect there are a lot of people on Capitol Hill, and elsewhere, who do that routinely. It is not particularly clever or “art” as you believe, just pretty basic logic.”

    A little wordy, but responsive. It also rejects two of your sillier notions. (1) That someone has to be “clever” to understand what Alexander said. (2) That the exchanges were “art”.

    You liked Johnson’s questions and having Alexander’s answers on the record for future reference. Who did you say you worked for?

  27. orionATL says:

    @lefty665:

    lefty665 says :

    “You apparently do not understand the difference between evasive and responsive any more than you value agreement between subject and predicate or the shift key.”

    that response of yours is one of the more intellectually dishonest, linguistically hocus-pocus, responses i have seen in the weblog world.

    it is the kind of intellectually dishonest, evasive, response trolls usually provide, though you are not a troll.

    it was general alexander’s evasion and congressman johnson’s “failure” to challenge that evasion which provoked your initial response.

    you responded to a specific challenge i made to your comment thusly, in the first sentence of #25:

    “…“do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?” I may be naive, but I’m not dumb enough to answer that question…”

    it is amazing to me that an individual can contribute an interesting comment, as you did at #3, and then, when challenged, have his subsequent responses degenerate into the same sort of evasion that he was criticizing congressmen for displaying.

    you really have dug yourself a hole of intellectual dishonesty, lefty, and still you keep digging.

    bon voyage a china.

  28. orionATL says:

    @lefty665:

    lefty665 says :

    “You apparently do not understand the difference between evasive and responsive any more than you value agreement between subject and predicate or the shift key.”

    that response of yours – substituting “responsive” for “evasive” – is one of the more intellectually dishonest responses i have seen in the weblog world, leaving aside your linguistic hocus-pocus about shift keys.

    it is the kind of intellectually dishonest, evasive, response trolls usually provide, though you are not a troll.

    it was general alexander’s evasion and congressman johnson’s “failure” to challenge that evasion which provoked your initial response.

    you responded to a specific challenge i made to your comment thusly, in the first sentence of #25:

    “…“do you believe some congressman, e.g., johnson but not limited to him, are clever enough to properly interpret alexander’s words?” I may be naive, but I’m not dumb enough to answer that question…”

    it is amazing to me that an individual can contribute an interesting comment, as you did at #3, and then, when challenged, have his subsequent responses degenerate into the same sort of evasion that he was criticizing congressmen for displaying.

    you really have dug yourself a hole of intellectual dishonesty, lefty, and still you keep digging.

    bon voyage au china.

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