Imagine the Informants You Can Coerce When You Can Spy on Every Single American

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Two years ago, I noted a chilling exchange from a 2002 FISA suit argued by Ted Olson. Laurence Silberman was trying to come up with a scenario in which some criminal information might not have any relevance to terrorism. When he suggested rape, Olson suggested we might use evidence of a rape to get someone to inform for us.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us.

It’s chilling not just because it suggests rapists have gone free in exchange for trumping up terrorist cases for the government, but because it makes clear the kinds of dirt the government sought using — in this case — traditional FISA wiretaps.

Now consider this passage from the government’s 2009 case that it should be able to sustain the Section 215 dragnet.

Specifically, using contact chaining [redacted] NSA may be able to discover previously unknown terrorist operatives, to identify hubs or common contacts between targets of interest who were previously thought to be unconnected, and potentially to discover individuals willing to become U.S. Government assets.

Remember, while the government downplayed this fact, until Barack Obama won the 2008 election, the government permitted analysts to contact chain off of 27,090 identifiers, going deeper than 3 hops in. That very easily encompasses every single American.

The ability to track the relationships of every single American, and they were using it to find informants.

In the 7 years since this program (now allegedly scaled back significantly, but still very very broad) has existed, the dragnet has only helped, however indirectly, to capture 12 terrorists in the US (and by terrorist, they also include people sending money to protect their country against US-backed invasion).

Which means the real utility of this program has been about something else.

The ability to track the relationships of every single American. And they were using it to find informants.

Even while the number of terrorists this program discovered has been minimal, the number of FBI informants has ballooned, to 15,000. And those informants are trumping up increasingly ridiculous plots in the name of fighting terrorism.

The ability to track the relationships of every single American (or now, a huge subset of Americans, focusing largely on Muslims and those with international ties). And they were (and presumably still are) using it to find informants.

Update: Note how in Keith Alexander’s description of the alert list, the standard to be on it is “the identifier is likely to produce information of foreign intelligence value” that are “associated with” one of the BR targets (Alexander 33). This is very similar to the language Olson used to justify getting data that didn’t directly relate to terrorism.

Also note this language (Alexander 34):

In particular, Section 1.7(c) of Executive Order 12333 specifically authorizes NSA to “Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions.” However, when executing its SIGINT mission, NSA is only authorized to collect, retain or disseminate information concerning United States persons in accordance with procedures approved by the Attorney General.

Again, this emphasizes a foreign intelligence and CI purpose for collection that by law is limited to terrorism. Which could mean they think they can collect info to coerce people to turn informant.

The AG guidelines on informants are, not surprisingly, redacted.

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.

23 replies
  1. der says:

    In my imaginings I can see the person(s) in the cubicle next to Ed Snowden being creative enough to make a few $$$ from drug dealers, pot growers, black market entrepreneurs, internet pervs….and stashing those payoffs in the same overseas bank Mittens and Lisbeth Salander hide their wealth in. All in the name of fighting them there so we don’t have to fight them here. God Bless America.

  2. Peterr says:

    The Stasi — the Ministry for State Security in the former East Germany — would be envious.

    Hmmmm . . . I wonder what happened to all those Stasi folks, once The Wall came down. You don’t suppose that, like the German rocket scientists after WWII, they ended up working for the US?

    Hmmmm hmmmm . . . Ministry for State Security . . . National Security Agency . . . even the names sound similar. I can hear the NSA recruiting agent now: “C’mon in — you’ll feel right at home!”

  3. Peterr says:

    @emptywheel: I’ve been reading some German websites about the new head of the IOC, so Germany was on my mind before coming to read this post.

    But even without that in my head, the Stasi comparison is still a no-brainer.

  4. orionATL says:

    now, finally, i feel we’re getting to the real reasons the nsa spying behemoth was created and has been perpetuated, even though it is an extraordinary affront to american political and legal traditions.

    within the u.s., the nsa, operating entirely illegally, is about policing, specifically about giving federal police and prosecutors a huge, advantage.

    internationally, it is perpetuated to gain advantage in natural resources, banking, and diplomatic negotiations.

    its uttility to terrorism detection or military activity is minimal, as event after event has made clear (the legions of doom and the users of aaagghh, for example)

    the key is this:

    the nsa as currently conceived is the creature of the u.s. department of justice.

    the doj legally protects the nsa spying. without the shield of the doj’s legal sophistry and lies to the court, the nsa programs would not survive legal challenge and doj prosecutors and police(fbi) would lose their phenomenal advantage.

    the nsa is just another, though very consequential, expression of the out-of-control ruthlessness, illegality, mendacity, and immorality of the doj of the last decade.

  5. orionATL says:

    “..It’s chilling not just because it suggests rapists have gone free in exchange for trumping up terrorist cases for the government, but because it makes clear the kinds of dirt the government sought using — in this case — traditional FISA wiretap…”

    we know that a child molester was let go free for helping the fbi in its entrappment of the waffle house coffee klatch “terrorists”.

  6. orionATL says:

    it occurs to me that for every informant whose assistance the fbi can coerce, there might be an opposing witness the doj could encourage not to testify.

  7. posaune says:

    @Peterr: We were in Warsaw during the Lustrowania — when the former Communist State informant files were made public. There was a collective hush over the city, far greater than any event of Martial Law — no one on the streets, office doors closed, kids at home, stores closed. Everyone at work or at home, looking to see who had been an informant, or more critically, if their own names were on the list. Certain attache’s in Washington were recalled immediately.

  8. Frank33 says:

    Imagine the technologies you can suppress. There is our crippled Cryptography businesses. There is direct suppression by the government of Internet blogs. Johns Hopkins clobbered a report by Matthew Green. I wonder which of these secrets annoy our bankster overlords.

    Tampering with national standards (NIST is specifically mentioned) to promote weak, or otherwise vulnerable cryptography.
    Influencing standards committees to weaken protocols.
    Working with hardware and software vendors to weaken encryption and random number generators.
    Attacking the encryption used by ‘the next generation of 4G phones’.
    Obtaining cleartext access to ‘a major internet peer-to-peer voice and text communications system’ (Skype?)
    Identifying and cracking vulnerable keys.
    Establishing a Human Intelligence division to infiltrate the global telecommunications industry.
    And worst of all (to me): somehow decrypting SSL connections.

    What other technologies are being suppressed by the Intelligence Community? Obviously, Solar Energy.

  9. C says:

    @orionATL: In the oregon “Christmas Bomber” case the informant was a convicted Drug Dealer who was able to avoid prison *only* if he helped them bust terrorists. This has also been true of the other New York cases as well. The FBI seems to prefer easily-controlled “informants” and seems entirely willing to trade away real drug dealers for fake terrorists.

  10. Rayne says:

    @Frank33: Yes, and that’s my personal theory behind the harassment of Aaron Swartz, hounded to death by the DOJ.

    The current methodology of locking up all publicly-funded research behind paywalls like that of JSTOR means that it is incredibly difficult for the average American not locked into a non-compete/non-disclosure agreement with a research school or employer to pull together a cogent approach to renewable/alternative energy sources in competition with fossil fuels.

    Aaron Swartz was a credible threat to the walled garden protecting fossil fuels’ oligopoly because he was on the verge of releasing all the research the public paid for.

  11. prostratedragon says:

    From the amazingly reflective Cass Sunstein (te-hee).

    Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. … A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups.

    Sounds like he’s describing the cognitive orientation of, I don’t know, maybe some gooneyhead “terrorist stalker” who’s set about to bug every woman, man, child, and talking cat in the entire fucking United

  12. Nell says:

    Marcy, I’d be very interested in your thoughts about the Bart Gellman interview on Fresh Air today. He was good on the scale and seriousness of the spying and lying, but IMO way way too sanguine about non-existence of current abuse of vast spying powers, with all focus on what some *future* administration could do.

    SO and I have severe disagreements abt NPR news and talk shows, which has resulted in my vowing never to open my mouth during his listening bec it always leads to a fight. So hearing Gellman near end of interview meant my head was semi-exploding: I thought immediately of your post of last night re spasm of NSA queries in last six weeks of Bush admin, but also left out of his bland characterization are the much more common and sustained kinds of filthy squeezes you note here — across the board against Muslims, and against a wide array of activists (antiwar, enviro, anti-corp globalization, human and civil rights, etc.).

    Hoping that transcripts of Fresh Air shows exist, but may have to listen to whole thing.

  13. emptywheel says:

    @Nell: I was fairly sanguine about some but not all of the programs we’ve seen. Tho 215 was always a nuclear bomb waiting to go off.

    But given that they’re using it to find informants, it is unacceptable as is.

  14. geoschmidt says:

    Maybe I should refraise it: when our population gets to a point… then it goes to the next stage: cannibalism, then things like (blackmail) will be more in vogue… as it were… because it is a form of extraction, and that is all there is… anymore!! Fuck you Rayne!

    If there was ever a worser bitch that told everybody how to write and what to write, and you can’t take your own medicine not for a minute! Rayne Rayne Rayne and rain on your parade too.

  15. Rayne says:

    @geoschmidt: Thanks for another demonstration of how women who talk/write bluntly are defined negatively using pejorative terms. And thanks for exposing your mindset so clearly.

    Your comments here to me in this thread are off-topic and ad hominem. Knock it off.

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