Section 215 Order Reveals Secrecy Only Serves to Prevent Court Challenge

Last March, when Hank Johnson asked him a poorly worded question about what NSA was doing with its data center in Utah, NSA head Keith Alexander kept saying the NSA had no power to collect in the US.

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.

As I noted at the time, Alexander didn’t actually deny it happens. He just said the FBI would have that authority in the US.

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.

I even pointed to the great deal of circumstantial evidence that the FBI uses Section 215 to do bulk collection.

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.

The Guardian’s publication of a 215 Order collecting metadata from all of Verizon Network Business Services customers proves that I was correct. It proves that Alexander’s obviously false non-denial was just that: a dodge of the truth.

Indeed, the order also shows that FBI’s role is simply to provide legal cover by submitting the 215 request, but NSA gets the data.

The (anonymous, of course) Administration response to last night’s disclosure is to claim it is no big deal.

An administration official called the phone data a “critical tool in protecting the nation from terrorist threats to the United States.”

“It allows counter terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” the official added.

[snip]

“The order reprinted in the article does not allow the Government to listen in on anyone’s telephone calls, said the administration official Thursday defending the decision. “The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.”

Note: congratulations to The Hill’s Meghashyam Mali, who actually repeated this anonymous person’s claim that 1) the program allows the government to ID terrorists but 2) the 215 Order does not return the ID of any subscriber, as if doing so constituted journalism. (Note: Marc Ambinder just posts the talking points, without noting how internally contradictory they are–I’ll return to them shortly.)

Here’s the question, though: if this program is no big deal, as the Administration and some members of Congress are already claiming in damage control, then why has the Administration been making thin non-denial denials about it for years? If it is so uncontroversial, why is it secret?

Is there anything about the order that tips people off to whom, precisely, is being targeted? Does it explain how good (or bad) NSA’s data analysis tools are?

No. The collection is so broad, it could never provide hints of who is being investigated.

The WaPo suggests this order is just regular, routine collection, that quarterly 215 order sent to Verizon NBS. But even if, as I wondered last night, it’s triggered to a specific investigation, is there anything in there that tells people what or who is being investigated?

No.

There is nothing operational about this Section 215 order that needs to be secret. Nothing. A TS/SCI classification for zero operational reason.

The secrecy has been entirely about preventing American citizens from knowing how their privacy had been violated. It serves the same purpose as Alexander’s obviously dishonest answer.

And the most important reason to keep this secret comes from this claim, from the Administration’s LOL talking points.

As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.

The Administration wants you to believe that “all three branches” of government have signed off on this program (never mind that last year FISC did find part of this 215 collection illegal — that’s secret too).

But our court system is set up to be an antagonistic one, with both sides represented before a judge. The government has managed to avoid such antagonistic scrutiny of its data collection and mining programs — even in the al-Haramain case, where the charity had proof they had been the target of illegal, unwarranted surveillance — by ensuring no one could ever get standing to challenge the program in court. Most recently in Clapper v. Amnesty, SCOTUS held that the plaintiffs were just speculating when they argued they had changed their habits out of the assumption that they had been wiretapped.

This order might just provide someone standing. Any of Verizon’s business customers can now prove that their call data is, as we speak, being collected and turned over to the NSA. (Though I expect lots of bogus language about the difference between “collection” and “analysis.”)

That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.

It’s no big deal, says the Administration. But it’s sufficiently big of a deal that they have to short-circuit the most basic principle of our Constitution.

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.

21 replies
  1. What Constitution? says:

    Brilliant. You’re absolutely right in your concluding observation that “the most basic principle of our Constitution” (separation of powers) is being ignored by the Administration here. But it appears equally true that, for the Administration to do so on the President’s behalf or direction, the President is fundamentally violating his sole Constitutional obligation — which is his oath to “protect and defend” that Constitution. Yes, yes, that goes without saying. But perhaps it shouldn’t.

  2. scribe says:

    Separation of powers is not being “ignored”. It is, rather, being deliberately dismantled and assaulted.

    Don’t confuse the two.

  3. orionATL says:

    Why does president obama allow this to happen while he is president?

    Why does the president defend this action as necessary?

    Why did eric holder and robert mueller allow the fbi to to obtain (or “renew” – quite possibly another fbi red-herring lie) this order?

    Why are the principal government officials who could nix this order so smuggly defending it publicly?

    A presidency and administration that would move with extraordinary rapidity to fire a dept of agriculture employee who had been smearedby a noted right-wing smear artist,

    But which smuggly publicly defends this severe, chilling, unwarranted, and quite possibly ineffective intrusion of millions upon millions of citizen’s privacy,

    Is a presidency and an administration that has completely lost it’s way, completely lost it’s sense of direction, and completely lost whatever moral authority it had.

    What we now see revealed in starkest contrast is that the obama administration is a collection of ineffective bumblers whose political lifeline is the use of government force to give the appearance of protecting national security.

  4. orionATL says:

    @orionATL:

    I have no idea how this will play out, but i’d bet my bottom dollat that time will reveal this to be obama’s waterloo – the time he looked the other way once too often at fundamental, constitutional-contractual federal government misconduct.

  5. murph says:

    I suspect they will argue the operational argument for the secrecy would be this “if this program were public bad guys would find out about it and adjust their tradecraft accordingly.”

    This argument is essentially using the public assumption that the US government wouldn’t or couldn’t do this as a tactic to net better intelligence.

    Sick.

  6. DWBartoo says:

    Superb.

    When a government, specifically those individuals who claim the powers of that government, engage in such behavior, “Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens”, it strikes a mortal blow against civil society by destroying the rule of law, as delineated by the Constitution.

    Such behavior cannot be regarded as accidental … it is deliberate and intentional.

    Neither may it be understood as serving some more noble “greater interest”.

    Such behavior is designed to destroy the power that can belong to no one BUT “the people, that is, the power to determine whether a government deserves the trust and allegiance of the people, or whether it has behaved in such destructive, unprincipled fashion as to require that it be replaced with a government that better safeguards the genuine well-being and interests of the people.

    Better that people understand the truth of that, than that they rely upon the integrity and courage of those who might be supposed to reside, somewhere, in say, the judicial “branch” … who might just recognize the threat the government now, every day, more boldly and smugly, poses to reason, to justice, and, ultimately, to life itself.

    The managerial classes, which includes the political classes, from which ALL three “branches” gather their “players”, have failed, utterly and miserably, to protect either this republic or those citizens who comprise its society … indeed, those classes have out-sourced our capacity to manufacture what we need, they have brought the economic system (and the political system) to its knees, and have walked away enriched obscenely, safe from any meaningful legal consequence, even as this nation as been led onto endless war based upon lies and a fundamental betrayal of the universal human desire for freedom and self-determination.

    We now have a political class who make mock of the foundational principles of this nation and who wreak havoc upon the world, its peoples, its perceived resources, and the earth’s capacity (and willingness?, one wonders) to support human existence.

    That mockery will continue and the destruction along with it … either until it collapses under the weight of its own, what shall we call it? … perfidy, in all its strongest meaning … or until reason and courage may be found, somehow, to prevail among the people.

    Thank you, EW, for only the truth, all of it, may set us free … our freedom, if it is to have meaning, will only require doing what is needful when the truth is, finally, grasp.

    DW

  7. Netmaker says:

    If the order was specifically for the Boston Bombing then the order would included the Call Detail Records (the meta-data) for phone calls placed well in advance of the actual bombing.

    That it doesn’t, supports a case that the data collection is an ongoing activity or isn’t related to the bombing at all.

    Telecoms routinely keep these CDRs actively available for months (are longer) after calls are made – for their own billing, network support and customer support purposes.

    The CDRs are then archived under Federal law depending on the type telecoms entity from anything from 3yrs to 7yrs although you would to consult with someone that is familiar telecoms law if this is important to you.

    To my knowledge, the telecoms do not have the means to record broad swathes of the content of phone calls. Typically they might record individual calls or possible those associating with a customer call center. They really don’t want the liabilities that accrue from holding on to record calls.

    The NSA, on the other hand, has the means to record large volumes of phones conversations has had been well documented for years. And has the means to transcribe the calls and search for specific information.

    What the telecom provided CDRs do is to provide the NSA the ability to associate the call conversation with the meta-data of the CDRs. To provide as complete a picture of the call as possible.

    It may be that the NSA has the necessary technical means to generate the CDRs themselves but even for telecoms this a massive operation which requires constant supervision so I suspect that NSA doesn’t have this means or at the least doesn’t have a robust means of their own.

  8. Snoopdido says:

    From Politico – Senators say Verizon monitoring ‘nothing new’ (http://www.politico.com/story/2013/06/report-nsa-verizon-call-records-92315.html?hp=t1):

    “The top two leaders of the Senate Intelligence Committee said Thursday that the widespread monitoring of Verizon phone calls made in the United States has been going on for years, and that Congress is regularly briefed on it.

    Sens. Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.) also defended the National Security Agency’s request to the company for all the metadata about phone calls made within and from the United States.

    “As far as I know, this is the exact three-month renewal of what has been in place for the past seven years,” Feinstein said. “This renewal is carried out by the [Foreign Intelligence Surveillance Court] under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress.”

    Chambliss said the report in the Guardian Wednesday was “nothing new.”

    “This has been going on for seven years,” he said. “…every member of the United States Senate has been advised of this. To my knowledge there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years.””

    As expected, the defense of the indefensible makes its SSCI appearance. The idea that “there has not been any citizen who has registered a complaint” therefore it justifies the unconstitutionality of the acts is one we’ll hear again and again.

    If you haven’t done anything wrong, you have nothing to worry about.

  9. What Constitution? says:

    @scribe:
    You’re not wrong, but neither does the distinction you suggest make a difference. The “attack” strategy here is specifically to “ignore” — confident in the assumption that people will not object. The result is the same, and even more likely to succeed if those who do notice make excuses or insist upon the presumed futility of objecting. Whether the administration is “ignoring” the Constitution or “attacking” it, in the absence of objection they will continue to get away with it.

  10. P J Evans says:

    @Snoopdido:
    The right-of-center Senators (like Chambliss and DiFi) don’t have a problem, because they’re sure it will never be used against them, just against criminals (like journalists, bloggers, and people/groups like Occupy that believe businesses and government shouldn’t be above the law).

  11. phred says:

    @Snoopdido: Yeah, the live blog at the Guardian has all the Senators in the know (Feinstein, Chambliss, Graham) covering their asses as fast as they can. It is important to bear in mind that some Senators have been briefed and are a-ok with the secret repeal of the 4th amendment of the Constitution.

    I think EW’s post reinforces the fact that SCOTUS is also onboard with defacto repeal of key Constitutional amendments. Lets face it, the proper mechanism is a pain in the neck, this is much faster, much easier. Keep it secret. Deny standing. Repeal accomplished!

    Hail Caesar.

  12. phred says:

    @P J Evans: Yeah, that’s another bit that’s really special, evident in the liveblog at the Guardian…

    “Mark Kirk, Republican of Illinois, asks Holder if he can assure the committee that “no phones in the capitol were monitored that would give a future administration” leverage over any members of Congress.

    The question is: Did you spy on US?

    “I don’t think this is an appropriate setting for me to discuss that issue,” Holder says.

    Kirk objects. “The correct answer is no,” he says.”

    So, suddenly Senators manage to give a damn when they think they are being spied on. All the rest of us sure, go ahead, it’s no big deal to them. I wonder what David Vitter or Wide Stance or Anthony Weiner think about blanket surveillance?

  13. Billy Bob Tweed says:

    Andrew Sullivan is perfectly okay with all of this, he doesn’t believe there’s anything to see here, so in good conscience no other *real* liberals should, either. The president is only protecting us. Stop distracting yourself with the Constitution. Semper fi, etcetera.

  14. William Ockham says:

    Why is this news? We’ve known since 2006 that they were doing this. This is just the cover for the router tap they have at Verizon. I’m sure the exact same thing exists for all the other big telcos.

  15. P J Evans says:

    @phred:
    A lot of them are old enough to remember J Edgar Hoover. That in itself should make them a lot less comfortable with the idea that the government needs to be able to get all that data for ‘national security reasons’.

  16. orionATL says:

    Why is it that:

    When the chinese (a powerful and economically vital nation) use computers against the united states to steal military-related information by the giga-terabytes we refer to that as chinese cyber warfare.

    When the u.s. and israel concoct and use a computer virus against iranian uranium processing machinery, we (the world’s super-power) refer to that as cyberwarfare.

    But when an unpowerful nation like iran, whose economy we have severely disrupted with a boycott organized by the u.s., use computers against the u.s., they are engaging in terrorism.

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