NSA Caught Illegally Spying on Americans and Keith Alexander’s Answer Is a Group Hug

Kevin Gosztola had a superb post yesterday on a letter NSA Deputy Director John Inglis and DIRNSA Keith Alexander sent to family members of NSA employees to make them feel better about the dragnet. It’s a two page letter attempting to convince the family members of our SIGINT spies that their mission is noble and their actions within the scope of the law.

I’m particularly interested in the timing of it. As Kevin notes, the letter cites a typically obsequious post from Ben Wittes on how the Administration should have responded to WaPo’s disclosure of an internal review (just as one example, Ben claims to have read the report closely but somehow misses that 9 to 20% of violations consist of analysts breaking rules they know).

Inglis and Alexander write,

There are some in the media who are taking the time to actually study the leaked material, and they have drawn conclusions that are very different from those who are in it for a quick headline. One such legal scholar wrote that we should have made our case more forcefully by responding,

Shameful as it is that these documents were leaked, they actually should give the public great confidence both in NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA.

We couldn’t agree more.

I wonder if NSA would like to send family members my way, given that I have taken even more time than Ben studying these revelations and find he’s frequently engaging in spin?

Hmm. Probably not.

But what’s most fascinating by this citation is the timing.

Ben wrote that post on August 18, in the midst of a slew of disclosures by WaPo and the Guardian.

But Inglis and Alexander wrote this letter on September 13 — last Friday — at the end of a month when all of the major US-based disclosures (save that NSA has deliberately made all of us more vulnerable to hackers) have come from the government. In the month leading up to this letter, we learned the NSA:

At the end of 2008, the NSA had authorized contact chaining off of 27,090 identifiers and analysts could go four hops deep into the data, which effectively would allow them to create a relationship map of the entire country. And they used it not just to find “terrorists,” but also people they could coerce to inform on targets.

A system the Stasi would envy!

And FISA Court judges had deemed some of the first and third practices illegal. One threatened criminal referral and the other even shut down at least part the program for a period.

In short, whereas the first two months of disclosures leading up to Ben’s post exposed the NSA doing things that might be deemed outrageous, the last month of government disclosures (albeit forced by ACLU and EFF FOIAs) have made it clear the NSA broke the law by spying on Americans.

Ben’s claim that, “They show no evidence of any intentional spying on Americans or abuse of civil liberties,” seems quaint in retrospect.

And this last month of disclosures, it seems, is what convinced Inglis and Alexander to give their extended family a great big group hug.

Perhaps unsurprisingly, Inglis and Alexander actually cut Ben’s proposed response to these disclosures short, leaving out this bit.

And they show an earnest, ongoing dialog with the FISA Court over the parameters of the agency’s legal authority and a commitment both to keeping the court informed of activities and to complying with its judgments on their legality. While it took a criminal act to make this record public, we are deeply proud of this record and make no apologies for it.

“Strains credulity,” Reggie Walton said of NSA’s claims they were too stupid to know they had continued the features of Dick Cheney’s illegal program. “The third instance in less than three years in which the government has disclosed a substantial misrepresentation,” John Bates said in apparent exasperation.

And even after Bates dangled criminal referral, the NSA still wanted to continue doing what it was doing (in fact claiming the law didn’t apply). Even after Walton shut down at least part of the Section 215 collection because the NSA was sharing freely within NSA and had permitted other agencies to access it directly, the NSA continued to use other means to distribute query information (they didn’t officially tell the Court, either).

We’ve also learned in the last month that the most shocking disclosure from that original WaPo story — that an analyst tried to pull up Egypt’s calls but got DC’s instead — had never been disclosed to the FISC, not even as part of the long series of disclosures in 2009. Indeed, that “mistake” suggests that NSA’s claims of ignorance were utterly false.

The interim month of disclosures has made it clear that the NSA has been anything but forthcoming about its illegal spying on Americans and violations of measures to protect their privacy.

Inglis and Alexander appear worried about what will come next.

Over the coming weeks and months, more stories will appear.

Remember, we haven’t yet seen the “misrepresentation” that came between 2009 and 2011. It likely pertains to the Internet metadata dragnet program. Ron Wyden and Mark Udall have warned “some significant information – particularly about violations pertaining to the bulk email records collection program – remains classified.”

Is Inglis and Alexander’s group hug just an attempt to steel NSA family members for still more alarming — government released — revelations about illegal spying on Americans?

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.

31 replies
  1. par4 says:

    The hefty government checks they receive will ameliorate any qualms these families might have. It’s a lot better than competing in this neo-liberal service economy. I’m sure their take home pay is much better than that of fast food employees,bartenders and waitresses.

  2. joanneleon says:

    The timing is interesting.

    My guesses:

    – Alexander has to be losing his sh*t over the recent articles about him, especially the long one in Foreign Policy where Hayden spoke against him, and some significant number of his employees probably worked for Hayden too, so they might be inclined to take what he says very seriously. Plus the follow up articles about his Star Trek command centers and such, which can’t go over well during tough economic times for so many.

    – The article seemed to be a sign that Alexander is going to take the fall after this whole thing slows down. No sense in putting somebody new in that position until all or most of the dirt is out because somebody’s got to go lie to Congress and the nation and that job is not finished yet. If Alexander and Inglis feel like they’re going down, they might be looking for the “family” to stand up for them. This letter seemed to me to be really manipulative in that way. Having heard a lot of testimony and some speeches by Alexander, the language in this letter sounds just like him. I don’t think he’s in a particularly good frame of mind lately and might be feeling like he has fewer and fewer allies to protect him.

    – Now that Congress is back in session, vacations are over (for those who can still afford them) and kids are back to school, more people are paying attention and teams are back at full strength. I think they expect some big, public hearings and more attention in general to happen and are rallying support in advance of that.

    But I hope it’s also motivated by some big, new disclosures that are coming soon.

  3. Bill Michtom says:

    Wittes, in a just world, would be at the defendants’ table at the Hague. His defense of the Iraq war, drone strikes, illegal detention, and other crimes of the US empire makes him a minor-league Goebbels.

    He is disgusting and unworthy of Marcy’s attention.

  4. der says:

    The olde “one bad apple ruining the barrel” ploy the abuser uses in the dysfunctional family relationship. After the umpteenth trip to the emergency room good ol’ dad comes home and tells the kids that all’s well, he wasn’t knocking mom down but trying to help her up, and her sense of balance just isn’t what it should be.

    Keeping the kids in line – “who are you going to believe me or your lying eyes?” Also, too sending the family’s black sheep to the purgatory of the gulag because they had the temerity to stand up for truth. (This bit of Downton Abbey dialogue from what I interpreted as truth on trial):

    Judge – “John Bates (for telling the truth), you have been found guilty of the charge of wilful murder. You will be taken from here to a place of execution where you will be hanged by the neck until you are dead, and may God have mercy upon your soul.”

    Dad – “The smart ones know to keep their mouths shut” wink, wink.

  5. What Constitution? says:

    This PR fairytale letter is perfect for conducting a cross-examination of Alexander in front of the Senate Intelligence Committee and on TV. Or for being dissected in a full-page ad by the ACLU in the Times (or will it have to be The Guardian?). The letter’s two pages reproduced on the left column, highlighted sentence by sentence with a factual rebuttal/commentary for each line on the right side. It would be a little tedious, perhaps, but the sheer duplicity and the guilt and fear it masks could be lost on nobody.

    Keep up the very good work, and thank you for it.

  6. edge says:

    I wonder what sort of grumblings in the ranks prompted this. Are they losing employees? Or are they worried that other employees might go Snowden on them?

  7. lefty665 says:

    The letter is a sign of profound stress within the Agency. That is basic traffic analysis using meta data, and, in this case, content from one end of the comm. From that we can infer some of the prior incoming comm. Alexander would not be saying squat if everything was hunky dory internally.

    NSA is both compartmentalized internally and severely restricts what employees can tell their families about what they or their employer does. Many employees and families are very likely learning what NSA has been up to for the first time, right along with the rest of us.

    Significant numbers of NSA employees, and more so their families, must be uncomfortable with or distressed by the activities they are reading, seeing, and hearing about. Perhaps spouses to the effect “WTF, you’re recording my calls to my mother/father, tracking my location and sharing it around the world?”.

  8. reliably says:

    On September 16, the Monday after the Friday the 13th letter, ZDNet published this embarrassing plea from NSA mathematician Roger Barkan:

    http://www.zdnet.com/nsa-cryptanalyst-we-too-are-americans-7000020689/

    This would suggest there’s a wider PR strategy for humanizing the NSA. Judging from the comments on Barkan’s piece, it’s not going down well at all.

    Interestingly, Barkan seems quite ignorant of what has been documented about the NSA programs and their abuses. Is this part of being a good NSA drone — not following the developments in the Snowden/NSA news stories?

  9. Frank33 says:

    The NSA is illegally spying on Americans. There is a reason. It is to conceal that the NSA supports Al Qaeda terrorists. The NSA and Michael Hayden were protecting the San Diego Al Qaeda cell before the 9/11 attacks.

    We did not disseminate information we received in early 1999 that was unexceptional in its content except that it associated the name Nawaf-al-Hazmi with al-Qa’ida.

    And the terrorists were getting money through the Riggs Bank.

  10. orionATL says:

    @lefty665:

    “..NSA is both compartmentalized internally and severely restricts what employees can tell their families about what they or their employer does. Many employees and families are very likely learning what NSA has been up to for the first time, right along with the rest of us…”

    i think you’ve nailed the motive for this epistle from the emperor.

  11. lefty665 says:

    @reliably: Also note that Barkan started with NSA in 2002, after the post 9/11 mission change, and likely in response to it. He’s never known any other way.

    As you note, he does not seem aware of much of what has become public recently. That seems a perhaps genuine but improbably naive defense for which he may have little factual basis. Just where in the trenches has he been, and how can he know what he has not seen?

    There does not seem to be evidence that NSA has intended to become a tyrant. But, turning their tools inward enables tyranny. The proverbial road to Hell.

  12. Arbusto says:

    And even after Bates dangled criminal referral, the NSA still wanted to continue doing what it was doing (in fact claiming the law didn’t apply).

    Not much of a threat, given Holds DoJ dislike of criminal trials, such as not indicting Halliburton for its behavior over the BP fiasco, nor in referring DoJ miscreant attorneys for ethics violations.

  13. orionATL says:

    @reliably:

    “..Interestingly, Barkan seems quite ignorant of what has been documented about the NSA programs and their abuses. Is this part of being a good NSA drone — not following the developments in the Snowden/NSA news stories?..”

    could it be that nsa employees are prohibited from reading available news reports or analysis based on snowden’s disclosures?

    monthly polygraph tests would probably ensure compliance.

    i would bet nsa is a psychological hell-hole to work in right now, perhaps like james jesus angleton’s russia shop at the cia some years back.

  14. orionATL says:

    as for benjy wittes’ touching patriotism, one wonders if brookings might have a contract with odni or nsa to provide neutral, expert cover for nsa’s depredations.

  15. Eureka Springs says:

    Well you certainly knew how to knock this knuckle ball right out of the park. Fun, even for the uninitiated a very informative post.

  16. reliably says:

    @orionATL: could it be that nsa employees are prohibited from reading available news reports or analysis based on snowden’s disclosures?

    Could be. That was my thought, too. We do know that the DoD sent around a notice telling employees and contractors not to read or download leaked-but-classified documents (http://www.fas.org/sgp/othergov/dod/notice.pdf). The same happened with DHS and Senate staff, and the Army blocked access to the Guardian website.

    As NSA falls under DoD, I’d think the DoD notice covers them.

    However, it’s one thing to be told not to look at your employer’s secret documents; it’s another thing entirely to write in defense of your employer without reviewing any of the evidence. Maybe Barkan (who is well-known in the puzzle world) is simply angling for a promotion.

  17. Peterr says:

    @Eureka Springs: ES!!

    All in all, I’d rather we had a government/media that provided us with less reason for such fun in the first place.

    Of course, you go to blog with the government/media you have, not the government/media you want. Thus, my answer to Marcy’s final question is “Absolutely.”

  18. whodoes says:

    I imagine there is legitimately a lot of stress among the rank-and-file and I’d imagine things are bubbling up regarding morale and maybe the HR department is reporting concerns.

    Imagine being an NSA spouse at a cocktail party a year ago. “My spouse works at the NSA!” “Oh, wow, that must be interesting/exciting. Fighting terror!”

    Cocktail party now: “My spouse, um, works at the, um, NSA.” “Oh, so is it true they’re reading my e-mails and spying on me? Isn’t that a violation of the Fourth Amendment or something?” Or they just look really uncomfortable and try to change the subject, with everyone knowing those are the questions they’d like to ask. Makes the suburban DC cocktail party circuit more awkward, that’s for sure.

  19. emptywheel says:

    @whodoes: Yup. And I actually DO think most NSA people are working on 12333 stuff that only exceptionally picks up US P stuff. So they likely didn’t about this stuff.

    Which is why firing the top people is important, to make sure there’s a way to put this behind you.

  20. lefty665 says:

    @emptywheel: “…firing the top people is important, to make sure there’s a way to put this behind you.”

    Thank you EW, you hit it right on the nose. It starts at the top. It is past time for Gen. Keith Alexander, DIRNSA to be gone. He’s had two tours, and done twenty tours worth of damage.

    @whodoes Not likely the way the conversation goes. Perhaps something more like this:

    Q “What’s your spouse do?”
    A “He/she’s an engineer”
    Q “Who’s he/she work for?”
    A “Government” – Smart chatter diverts here, dumb continues…
    Q “What part?”
    A “DoD”
    Q “Which service?”
    A “Isn’t that an interesting tie (or dress) you’re wearing. Where did you get it?”

    Employees or family running their mouths about NSA is a career breaker.

    Your initial point that there has to be a huge amount of stress in the Agency these days is absolutely right.

  21. P J Evans says:

    @lefty665:
    Sounds like my grade school, if we’d asked questions like that:
    ‘What’s your father do?’
    ‘He’s an engineer.’

    The major employer in town was – and is – the government, and a lot of stuff was – and is – classified. We didn’t actually ask that question….

  22. orionATL says:

    @emptywheel:

    firing people to put this stuff behind “us” is not an end or a complete solution, just a beginning.

    firing alexander and not completely redoing nsa and (best possibility) splitting it up, will only paper over “the nsa problem”.

    the fundamental constitutional problem which the nsa of today presents, involving personal privacy and freedom of expression without govt censure,

    is the social/bureaucratic institution “nsa” that has been established since 2002 under bush/obama.

    firing alexander and others will not change this institution, nor diminish the severe future threat it represents.

    what is also needed is for congress to rescind the “patriotism” act, the fisa redo act, the telecommunications immunity act, and other statutes that authorize and fascilitate the “current nsa” institutional behavior.

    additionally, very strong whistleblowing protection for nsa employees, very strong protection of nsa employees from supervisory mistreatment, very strong outside evaluation of nsa activities, and clear and strong laws punishing lying or misleading conduct by nsa attorneys, spokemen, or appointed officials.

    getting rid of alexander, absent these other actions sincerely undertaken, would be a change merely for the purpose of hiding the fact there will be no change at the nsa that has been unmasked by snowden.

  23. C says:

    @orionATL: Yes they most likely are. The DOD banned reading of anything by or about wikileaks on their systems which would of course keep any active-duty members or related civilians from seeing the collateral murder video. I would suspect that a similar order, or strong hint, is in place for these disclosures. When you combine that with the existing bulkheads that exist in a group like the NSA it is very likely that the good mathematician is wholly unaware of this, and plans to remain that way.

    The most recent, and to my mind damning, disclosure of the deliberate attempts to attack encryption and end-user products was given a new level of secrecy that had not been seen elsewhere. Way beyond classified noforn. As such it is likely that most of the NSA and the contractors had no idea they were compromising our ability to protect ourselves in the name of catching bad people.

  24. orionATL says:

    exercise:

    apply the lessons of this event, to the extent you understand there is one, to the current “debate” on the wisdom or necessity or effectiveness of the “new nsa” conduct regarding tertorism threats and cyberwar threats:

    http://www.theguardian.com/world/2013/sep/20/usaf-atomic-bomb-north-carolina-1961

    if you are as old as i am, you have seen the u.s. gov’t’s fear-inducing propaganda before,

    in the form of 1960’s propaganda about the “terrible threat” a nuclear armed soviet union presented to the well-being and “freedom” of the u.s.

    the proper american response? build more powerful bombs and more diverse “delivery” methods.

    naturally, the citizenry and the congress reflexively backed having more and better nuclear weaponry.

    because all this gov’t work to protect us was classified and very secret, we were not afforded an opportunity to know details or ask questions.

    we do not know the extent of damage at hanford or plano, if any.

    we do not know how much radiation continental americans were exposed to.

    we do not know if any of this effort was necesssry or effective.

    we only know we were presented with by the gov’t with dire hypotheticals.

    what we may have learned recently is that actions the congress, the president, and the dod took based on those dire hypotheticals, very nearly led to a catastrophic nuclear explosion in north carolina that would have killed millions in the mid-atlantic states – something the soviet armamentarium never threatened.

    forewarned is fore-armed, except for fools.

  25. orionATL says:

    this article says what i was trying to say, but much better:

    “… In Command and Control he similarly reminds us that the United States, a country that prides itself in being the most rounded democracy in the world, devised an IBM computer programme called QUICK COUNT that allowed war planners to identify “desired ground zeros” in Soviet cities so as to maximise the number of civilians killed in a nuclear strike. In 1961, the Pentagon instigated a war plan that would be unstoppable once the nuclear button was pushed, killing 220 million people in the Soviet Union and China within the first three days.

    ‘The nuclear command and control system was so huge and complex it was almost impossible for one man to fully comprehend. Henry Kissinger’s career was founded on his knowledge of nuclear weapons, yet, when he got into the White House and saw the war plan for the first time, he was astounded. That happens again and again: we’re brilliant at devising solutions to very immediate problems, but awful at seeing the consequences of those actions.’ …”

    “… His next book after Command and Control will be on America’s prison system. Food-dope-nukes-slammers: where’s the logic?

    “…’Powerful systems of control that aren’t being discussed and that work very hard to disguise how they operate,” he answers…”

    http://www.theguardian.com/books/2013/sep/21/eric-schlosser-books-interview

  26. pdaly says:

    Would banning generals from being NSA director be a step in the right direction? It nominally could reduce the Commander in Chief influence if and when the President orders them ‘to do it.’

  27. P J Evans says:

    @pdaly:
    I think banning generals from all appointed non-military positions would be a good idea. And take Alexander’s fancy control center away and scrap it.

  28. Stu Wilde says:

    @joanneleon:

    Sorry Joan, but what makes you think anyone (save a select few) will care enough about this issue to have hearings? AND, if they do have hearings, they will have to be closed-door. AND, if they do have hearings of any sort — do you really think there could be legislation rolling back the provisions in the Patriot Act our govt has twisted beyond recognition?

    I saw as genially as possible: optimism of this sort borders on lunacy.

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