James Clapper Throws a Concentrated Nugget of Orwellian Turd-Splat

Hooboy.

I was going to leave the whole CNET thing well enough alone after Jerry Nadler issued a statement retracting his sort-of suggestion that the NSA could wiretap Americans without a warrant (more on that below).

But I can’t remember seeing a more concentrated piece of Orwellian turd-splat than this statement addressing the issue from James Clapper.

The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress. Members have been briefed on the implementation of Section 702, that it targets foreigners located overseas for a valid foreign intelligence purpose, and that it cannot be used to target Americans anywhere in the world.

The claim that NSA doesn’t wittingly “collect” data on millions of Americans was just an opening act for James Clapper, it seems. I know it won’t work this way for those who trust this program, but Clapper’s statement should raise more questions whether the thrust of what Nadler said, rather than four words taken out of context, are in fact true.

Let’s take this slowly.

I’ve put my transcription of the exchange between Jerry Nadler and Robert Mueller below for your reference. But one thing to keep in mind as you read Clapper’s turd-splat is that Nadler first described “getting the contents of the [American] phone” identified using the metadata database and, in repeating the question he had earlier asked a briefer who actually knows about how these programs are used, “getting specific information from that telephone.” It is true that in response to Mueller, he spoke of “listening to the phone,” the four words taken out of context, and his walk-back describes “listening to the content.” But the range of Nadler’s language suggests the distinct possibility the briefer discussed a different kind of collection, and Nadler never once explicitly described setting a dedicated wiretap on the phone of an American identified from conversations with suspected terrorists (which is what CNET blew it up as).

With that in mind, I offer you turd-splat:

The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization and was not briefed to Congress.

Clapper has set up a straw man that differs in at least three key ways from what Nadler asked about. First, he is addressing only eavesdropping, monitoring a phone in real time going forward, not accessing historic collections (though one thing these two programs in conjunction do is collapse historic and ongoing communications). I’m especially amused by this move, because it replicates a mistake that many have made when discussing these programs (especially the metadata one) as wiretapping. Clapper is only addressing the most inflammatory language Nadler used, not the language he used first and last in this exchange.

Then Clapper introduces the idea of domestic communications. This has no source in Nadler’s comment whatsoever, at least so long as you believe the only way NSA uses the metadata database is to see which Americans are talking to suspected foreign terrorist phone numbers. Given the government’s improbable claim they’re only making 300 queries a year, we may well be talking about domestic communications, but that’s not what Nadler addressed, which was about the American participant in a call with a suspected foreign terrorist phone number.

Nadler asked about an analyst deciding, on the basis of metadata analysis, that a US phone number looks suspicious, to “get the content” from that number. He implies that he has been told an analyst has that authority. Clapper addresses only whether an analyst without proper legal authorization can get US person content. That is, in response to Nadler’s question whether an analyst does have the legal authority to get content based on suspicion, Clapper says an analyst can’t get content without the proper legal authority. Nadler’s entire (implied) question was whether an analyst would have the legal authority to do so. Clapper doesn’t answer it.

So in other words, Clapper alters Nadler’s comment in three fundamental ways, changing its entire meaning, and then asserts Clapper’s now only tangentially related distortion of Nadler’s comment was not briefed to Congress.

No. Of course not. And Nadler hadn’t said it was, either.

And then Clapper describes what (he claims) members were briefed. Splat!

Members have been briefed on the implementation of Section 702, that it targets foreigners located overseas for a valid foreign intelligence purpose, and that it cannot be used to target Americans anywhere in the world.

Whoa! Do you see what Clapper did there? Nadler asked a question about how an analyst would move from metadata analysis — the Section 215 program — and then use it to access content, via whatever means. Nadler mentioned Section 215 specifically. Yet Clapper claims this is all about the implementation of Section 702. (Note, I find this interesting in part because Mueller suggests Nadler might be talking about another program entirely, which remains a possibility.)

I have pointed out on several times how desperate the Administration is to have you believe that Section 215 metadata collection and Section 702 content collection are unrelated, even if surrogates can’t keep them straight themselves. Clapper’s ploy is more of the same.

As is his emphasis that Section 702 targets foreigners located overseas for a valid foreign intelligence purpose. Now, just to make clear, the government has always held that any collection of information on what foreigners are doing is a valid foreign intelligence purpose. While Clapper doesn’t engage in suggesting this as directly as he and others have in past weeks, for Section 702 there is clearly no limitation of this authority to terrorism or counterintelligence or proliferation or hacking (the Administration and surrogates have suggested there is a terrorism limit for the Section 215 dragnet, but if there is, it comes from court-ordered minimization, not the law). But the real cherry here is the word “target,” which has become almost as stripped of common meaning as “collect” in this context.

In the 702 context, “target” refers to the node of communication at which collection is focused, not to all communications associated with that collection. So a directive to Verizon might ask for all communications that the original suspected terrorist phone number engages in (including its surfing and texting and pictures and email). But at a minimum that would include everyone the suspected terrorist communicates via his Verizon service, and there’s very good reason to believe it includes at least one and probably more degrees of separation out, if Verizon has it.

So when Clapper says 702 cannot be used to target Americans anywhere in the world, he means Americans cannot be the communication node on which collection is focused unless you have a FISA warrant (which is the practice Marc Ambinder, who is far more impressed with Clapper’s turd-splat than I am, addresses in this piece).

But what has never been answered — except perhaps in an off-hand comment in a debate defeating language that would actually prevent what everyone says is already prevented — is whether the government can, um, “collect” the content of Americans who communicate with those who are, um, “targeted.”

I’m not saying I have the answer to that question — though it is a concern that has been raised for years by the very same people who have been vindicated in their warnings about Section 215. But let’s be very clear what Clapper did here. He completely redefined Nadler’s comment, then divorced that redefined comment from the context of Section 215, and then threw the Orwellian term “target” at it to make it go away.

He could have denied Nadler’s more general assertions. That, he did not do.  


Nadler: Secondly, under Section 215, if you’ve gotten information from metadata, and you as a result of that think that gee, this phone number, 873-whatever, looks suspicious and we ought to get the contents of the phone, do you need a new specific warrant?

Mueller: You need at least a new National Security Letter. All you have is a telephone number. You do not have subscriber information, so you need subscriber information you would have to get probably a National Security Letter to get that subscriber information. And then if you wanted to do more–

Nadler: If you wanted to listen to the phone?

Mueller: You’d have to get a particularized order from the FISA Court directed at that particular phone at that particular individual.

Nadler: Now, is the answer you just gave me classified?

Mueller: Is what?

Nadler: Is the answer you just gave me classified in any way?

Mueller: I don’t think so.

Nadler: OK. Then I can say the following. We heard precisely the opposite at the briefing the other day. We heard precisely that you could get specific information from that telephone simply based on an analyst deciding that, and you didn’t need a new warrant. In other words, that what you just said is incorrect.

Mueller: I’m sure that it’s the same–an answer to the same question. I’m sorry, I didn’t mean to interrupt.

Nadler: Well, I asked the question both times and I think it’s the same question.

Here’s what Nadler said to walk this back (which I suspect overstates what is the case):

I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.

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.

22 replies
  1. Michael Cromer says:

    The words “listening” and “eavesdrop” (and “wiretap”) should serve as red flags to anyone following the story. Congresspersons and most Americans generally understand those words to mean something that is done in real time – i.e. as the conversation is taking place – and done by a human being (vs. an unattended computer). The NSA exploits this naive understanding to obscure what is really going on, and to escape answering the real question:

    Is the NSA *recording* the domestic telephone conversations of ordinary Americans?

    Yes.

    I believe the NSA/FBI when they say they are not “listening” (in the way most Americans understand) to our phone calls without legal authority. They don’t need to. Every call is being recorded, indexed, and stored away in their database. Any call can be accessed and listened to at any time later on. EVERY conversation, whether a target or a foreigner is involved or not.

    It is practical and economical to do so. (Some reports have said the costs would be on the order of only tens of millions of dollars.) It is the smart way to go: If you are already tapped into phone network collecting “metadata” you may as well grab the “content” too. And it’s apparently “legal” (in the NSA’s mind) because “nobody’s listening”.

    That said, the government would rather not rub the public’s noses in the truth, so they keep exploiting our naive understanding of “listening” (implying real-time and direct human involvement).

    The idea that a government analyst can “wiretap” our past conversations after the fact, merely by typing a few parameters into their computer console is bad enough. What if they are also using voice-recognition technology to index every word we say and create a massive search engine? By their Orwellian rationale, that would be legal as well.

  2. Orestes Ippeau says:

    What a word chase down a misty mountain on a unlit dirt road at 3 a.m. on a moonless night with headlights off. You almost lost me several times.

    Or maybe you did: Is the point here to get folks here to understand that there’s never been anything said or written publicly by the spookeaucracy that actually refutes the rational inference that the purpose of all that cubic massage of office/warehouse space they keep erecting in our backwater hellholes* is to squirrel away all “collected” (not necessarily live-monitored, or even content-reviewed — yet) “communication information”?

    (The state names make the case, except “Oregon”, with two [2!] of gynormous facilities. Makes sense when you see Oregon = two terrifically marketable mid-size cities + scenic coastline with killer conference resorts and golf courses … in the context of much mid-Appalachian isolated hellholery.)

  3. Ben Franklin says:

    Marcy; Asking this question again….Snowden is a contractor. Is there some legal distancing between the NSA and a contractor?

    When DOJ uses confidential informants to get around ‘entrapment’ and coerces a perp motivated by an offer to reduce sentence by setting-up an associate, technically the government does not entrap.

    Similarly, if NSA sends a contractor in for the data…….no problem, right? I’m thinking this is a legal firewall, but I always digress.

  4. Ben Franklin says:

    BTW; When Obama makes his awaited mea culpa NSA speech I have a question (if I were a tee vee reporter)

    How many Craft employees are on the public payroll in the 50 states?

  5. orionATL says:

    @Michael Cromer:

    Yes.

    And i keep thinking as i see these important basic points being made over and over,

    When are some now better informed congresscritters going to start asking, repeatedly,

    1. “Have you, the nsa, not collected, scratch that,

    Have you, the nsa, not stored away and made available to yourself for future reference, all the phone conversations of all americans?”

    2. “Are you not engaging in deliberate deceit designed to hide what the nsa is actually doing with americans’ phonecalls and e-mails when you use ordinary words like “collect” and “access” in special ways only you intend?”

    While the first question is more important to a well-informed public understanding,

    It is the second question which is truely verbotten – a congressional or media interlocutor must never ask a public official engaged in lying to the public if he/she is, in fact, lying to the public. That is part of the socially-acceptable-public-speech problem in american political pathology.

  6. Citizen92 says:

    “A single analyst without proper legal authorization” is being set as a straw man for something.

    Can two analysts without legal authorization working together “eavesdrop?”

    And what constitutes “legal authorization” anyhow? Are we talking about an NSL? A court deciaion? I bet all analysts working ON THAT PROGRAM are all legally authorized, so likely, yep, a single analyst CAN indiscriminately “listen in.”

  7. Rich says:

    @Michael Cromer:
    re: If you are already tapped into phone network collecting “metadata” you may as well grab the “content” too

    It can’t be done that way. The phone companies collect the metadata for billing purposes and can easily hand that over. The government doesn’t need to be “tapped into phone network” to get it.

    To “record” the call you need a tap which requires a warrant, unless the NSA has actually “hacked” the network. But if they had then why would they need to ask the phone company for the metadata? It doesn’t add up.

  8. Citizen92 says:

    Who drove the Bell breakup in the 70’s/80’s? Was it the necons seeking to profit? Alll of this unpleasantness could have been avoided had Bell not been forced to break up!n!

  9. Ben Franklin says:

    “1) More detail on how direct NSA’s accesses are is coming, ” Snowden.

    Ah, they’re saving that. Waiting for all the liars to come out with their cover stories first.

  10. orionATL says:

    I keep wondering when the guardian will get a court order from the obama boys to cease and desist.

    That will be a mark of true desperation.

    Right now the natsec vizers seem content to merely play word games with the media and the congress.

    I wouls guess that the whitehouse strategists (on how to lie to the american public about what nsa is really doing) are wishing about now that the attorney general had not previously let his hounds loose on the ap and on foxnew’s rosen.

    because now they have to worry about public distrust arising from nsa’s spying and lying on the one hand, and about public distrust arising from the department of justice’s legalized spying on the media on the other.

  11. Arbusto says:

    Something I don’t recall reading is conversations recorded through the cell but not to another phone. I remember pre-cell days and to date law enforcement could listen through a land line with the receiver on the cradle i.e. disconnected. Where has that slight of mouth come out in testimony or has it been broached or is it an issue?

  12. Peasantparty says:

    Yep!

    Like I said yesterday, Congress only knows what Cheney and the crew allowed them to know. Briefings were first held in Cheney’s private office, not the usual government process.

    Then they continually rolled out what else they wanted Congress to know in order to get funding approvals. PERIOD.

  13. emptywheel says:

    @Citizen92: Yes yes and yes.

    I think their fallback position is to assert that people who have access to the 215 database do not have access to PRISM requests.

    To which the question will be, can analysts of the 215 database provide query suggestions to the PRISM analysts? Because that ALSO has the nifty gimmick of introducing a body between the knowledge of a USP call and the one getting it via the backdoor.

  14. Citizen92 says:

    @emptywheel

    We could also question the choice of word “analyst.” Maybe analysis don’t have access, but contractors (like Snowden?) do? Snowden seems pretty adamant that he could wiretap anyone he wanted to. Added bonus that contractors don’t have to swear allegiance to the Constitution like government employees do?

  15. P J Evans says:

    @Citizen92:
    I wouldn’t be that government employees have to swear allegiance to anything. (If so, it’s not very binding, considering what we already know.)

  16. Citizen92 says:

    @PJ Evans

    Believe it or not, most Federal government positions do still require an oath of allegiance to the Constitution. A government official can still be sued for violating a citizen’s Constitutional rights. A “contractor” working for “private industry”… not sure if they have any “responsibilites” to the Constitution.

  17. emptywheel says:

    @Rich: It doesn’t require a warrant. They still collect right off the switches. Clapper has described that the metadata provides the “Dewey Decimal” to the communications they’ve collected, so they can go back and reconstruct it from packets.

    One of the slides Guardian posted makes that clear.

  18. Michael Cromer says:

    @Rich: They did hack the network. Do a Google search on “Room 641A”. Read about one of the earliest whistleblowers, an AT&T employee who watched as the NSA installed a secret wiring room in the San Francisco office. Presumably, lots of these secret rooms have been installed by now.

  19. lefty665 says:

    @Michael Cromer: Read Bamford “The Shadow Factory” http://www.amazon.com/The-Shadow-Factory-Eavesdropping-America/dp/0307279391

    Bamford lays out how our phone/internet systems have been methodically exploited, Hayden’s self serving capitulation, the rise of contractors, and NSA’s focus turned inward. Less than 10 bucks in paperback. It is a primer for the headlines of the last couple of weeks.

    If you are in the mood for reading, his other books on NSA are 1st class, and “Pretext for War” explains how we were driven into this mess by Duhbya et al after 9/11. It was available for the 2004 election cycle.

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