NSA Non-Denial Denial 241,352,052

Here’s the best the NSA could come up with to deny the WaPo’s report about how it steals data from Google and Yahoo overseas.

NSA has multiple authorities that it uses to accomplish its mission, which is centered on defending the nation. The Washington Post’s assertion that we use Executive Order 12333 collection to get around the limitations imposed by the Foreign Intelligence Surveillance Act and FAA 702 is not true.

NSA seems defensive about WaPo’s suggestion they used EO 12333 — if they did — for this collection. But note that David Kris suggests at least one other possibility for this “vacuum cleaner” collection, voluntary production (as well as procedures subordinate to EO 12333), so it’s possible they didn’t use EO 123333. Maybe the first line is meant to suggest at least one of these providers did cough this up voluntarily (which I think past reporting might support).

NSA then engages in the most delectable projection ever, in which it takes this comment from its biggest apologist this side of Michael Hayden, John Schindler, and suggests the WaPo made the assertion.

Intercepting communications overseas has clear advantages for the NSA, with looser restrictions and less oversight. NSA documents about the effort refer directly to “full take,” “bulk access” and “high volume” operations on Yahoo and Google networks. Such large-scale collection of Internet content would be illegal in the United States, but the operations take place overseas, where the NSA is allowed to presume that anyone using a foreign data link is a foreigner.

Outside U.S. territory, statutory restrictions on surveillance seldom apply and the Foreign Intelligence Surveillance Court has no jurisdiction. Senate Intelligence Committee Chairwoman Dianne Feinstein has acknowledged that Congress conducts little oversight of intelligence-gathering under the presidential authority of Executive Order 12333 , which defines the basic powers and responsibilities of the intelligence agencies.

John Schindler, a former NSA chief analyst and frequent defender who teaches at the Naval War College, said it was obvious why the agency would prefer to avoid restrictions where it can.

“Look, NSA has platoons of lawyers and their entire job is figuring out how to stay within the law and maximize collection by exploiting every loophole,” he said. “It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA.” [my emphasis]

The WaPo didn’t make the assertion, NSA’s most loyal voice on Twitter did.

But let’s at least entertain the possibility they’re using another authority to get around FISA, or using 12333 to get around some other limitation (possibly just FISC limits, perhaps placed on a bulk record order — the old Internet dragnet no longer conducted under FISC — rather than a FISA one).

They do a similar, though craftier thing, here.

The assertion that we collect vast quantities of U.S. persons’ data from this type of collection is also not true.

The WaPo specifically said it did not know how many Americans’ data this collection was picking up.

It is not clear how much data from Americans is collected, and how much of that is retained.

By claiming the WaPo had said they collected vast quantities, NSA could deny that rather than deny they were knowingly collecting USP data. Which I take as confirmation they know they’re collecting USP data.

But who knows how much?!?! Certainly not the NSA — at least per their claims to John Bates and Ron Wyden. They don’t know how many Americans’ data is collected in this way, purportedly. So they can’t make this claim.

Not credibly, anyway.

Now we get to minimization.

NSA applies Attorney General-approved processes to protect the privacy of U.S. persons — minimizing the likelihood of their information in our targeting, collection, processing, exploitation, retention and dissemination.

Keep in mind, if your defense is minimization procedures, you’ve already conceded that 1) you are collecting US person data 2) there are a slew of circumstances in which you are keeping and circulating US person data. What NSA doesn’t say is that even the more stringent FAA minimization procedures were deemed too permissive for intentional upstream collection in the US. Since NSA has all but admitted they do collect US person data, they’ve admitted it’s intentional. Which would seem to mean that the weaker 12333 minimization procedures may not meet Fourth Amendment muster, per the John Bates opinion.

Also one more thing: those words, targeting, collection, processing, retention, and dissemination? I’ve seen all those words. But now we’re talking about “exploiting” data. I find that … troubling.

Which brings us to the familiar refrain, in which collection the NSA admits includes US person collection is redefined as “foreign” which makes all us white people okay with it unless we’re hackers or some other enemies within.

NSA is a foreign intelligence agency. And we’re focused on discovering and developing intelligence about valid foreign intelligence targets only.

Of course, this refrain doesn’t work anymore, given that we know that discovering and developing intelligence about foreign intelligence also involves collecting the phone records of each and every one of us. But I guess it’s stuck in NSA’s boilerplate until it becomes embarrassingly obvious to all that “foreign” no longer necessarily has much to do with “other countries.”

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. phred says:

    I wonder what it will take for Obama to ask Clapper and Alexander for their resignations?

    Not that I have any confidence that O has any real desire for change, but still for appearance sake at some point even he has to realize that chronically lying to the public and Congress ought not to be tolerated.

  2. joanneleon says:

    As part of one of the MerkelGate stories, der Spiegel mentioned a different intelligence unit.
    ‘Special Collection Service’ (SCS) is operational in Berlin, among other locations. It is an elite corps run in concert by the US intelligence agencies NSA and CIA.”
    http://www.spiegel.de/international/germany/cover-story-how-nsa-spied-on-merkel-cell-phone-from-berlin-embassy-a-930205.html

    Is there any chance that Alexander could make statements about the NSA and deny things done by this unit? It’s not clear to me whose agency this is under. Then there is always the possibility that after the NSA became public, another covert agency was formed which is not acknowledged publicly, like the NSA used to be. It’s interesting that he doesn’t say they don’t collect US person data, just that they don’t collect it with this method.

  3. GKJames says:

    The debate about the front-end collection looks to be of the endless variety. Are prospects better at the back end, where we could test the purported good faith of the IC and the rest of the Executive Branch? Let’s have a statute that, in connection with a proceeding (criminal or civil), (i) compels the government to disclose fully how it obtained the evidence of wrong-doing [i.e., no more hiding behind the “that’s classified!” skirt] on which the claim is based; and (ii) automatically excludes evidence hoovered up without a warrant. If we can’t prevent the collection, let’s at least prevent the use of forbidden fruit. And if the IC’s sole focus really were on non-Americans, it would have little difficulty with idea. After all, such a statute would simply ensure that American’s rights under the Constitution were protected, much as the IC claims it wants to protect Americans.

  4. Arbusto says:

    These platoons of lawyers, maybe of the whorish bent of one John Yoo can twist any law. If say Booz Allen Hamilton intercepted US citizen data, is it in their contract that it’s illegal and a no-no or does the contract even speak to legalities, or if the German and English intel had offices inside NSA and collected US data, is that illegal, especially if it’s just warehoused or deposited outside US boarders and analyzed by NSA, is that illegal. How the fuck can any law stop this shit, especially when the Feinsteins and Holders of the world think it’s just ducky, regardless of the law.

  5. thatvisionthing says:

    NSA is a foreign intelligence agency.

    No, it’s not. It’s an enemy-seeking, enemy-creating agency. It needs enemies. Hammer, nail nail nail nail nail. Feed me. It’s a stupid thing for a democracy to have unless you’re all into death by cancer, and I don’t recall a vote on that. It’s antithetical to the purpose of democracy and antithetical to a decent respect for the opinion of mankind. David Brooks was right, tapping people and disrespecting their privacy is an insult. Hello.

  6. Snoopdido says:

    I see you are on Schindler’s List. No, not the historical one made into a movie. Instead the one by the “[NSA’s] biggest apologist this side of Michael Hayden”.

    Congrats!

    When Schindler starts stamping his foot and wildly sputtering that Emptywheel “is a wingnut”, you’ve made my day.

    I watched Schindler’s only appearance on MSNBC to talk about the Snowden NSA document dump with Chris Hayes as it happened and I thought that Schindler’s own repeated insistence of Russia’s FSB this and FSB that did more to destroy his credibility than anything Hayes could have done.

    I note that Schindler has never been asked back on MSNBC. I’m guessing that isn’t because MSNBC doesn’t bring on people with conservative views because they do. Instead I’m guessing that MSNBC tries to avoid booking people who insist on looking under their bed each night for Russian or Chinese spies because it might imply being a couple cans short of a twelve-pack.

  7. Anonymous Whistleblower says:

    EmptyWheel,

    Please see the following email sent to the Office of Special Counsel, the federal government investigative agency charged with enforcing the Hatch Act, which may refer the case to the Navy Inspector General’s office. Let me state at the outset this is not an issue of academic freedom or free speech but about politicization of a taxpayer-funded institution and position subject to Department of Defense regulations that limit DoD employees political activities and speech. If Prof. Schindler does not like those limitations, he’s free to resign and advocate for the NSA as a private citizen.

    Dear Washington D.C. Hatch Act Unit,

    I am writing to request that your office open an investigation and if necessary issue an advisory opinion to the Naval War College President and Dean of Academic Affairs regarding the highly public, political activities of Prof. John Schindler.

    This tip is being sent anonymously as the information required by investigators is freely available online on Mr. Schindler’s Twitter feed.

    The only non-public information investigators may require consists of facts not available to this correspondent, including:

    interviews with Prof. Schindler

    interviews with his supervisors/colleagues, Wayne Madsen — the NWC alumni and Washington area independent journalist who first alleged that Prof. Schindler had committed Hatch Act violations

    NWC cardkey logs of when Schindler has been entering or exiting buildings to determine if he is engaging in partisan or pro-NSA lobbying tweets while on campus or using taxpayer-supplied office space and equipment.

    The NWC’s contract with Prof. Schindler that discuss DoD limitations and restrictions on political speech and activities by NWC faculty and staff

    Specific provisions of concern:

    “(ii) Employees are prohibited 24/7 from sending or forwarding political/campaign literature, materials, information (including jokes) while using their DoD email account or while using a DoD computer.”

    Would tweeting out articles that are derogatory towards Rep. Justin Amash and lobby against specific legislation proposed by the Congressman be considered partisan political activity under the above or related Dept. of Defense regulations? Would this also fall under the definition of “grassroots lobbying” in the DoD rules about employee political activity?

    The following are partisan tweets derogatory towards the Republican Party and its tea party member federal lawmakers available at this hour on Prof. Schindler’s Twitter account (direct links have been published here: http://xxtwitterwarcommittee.wordpress.com/2013/10/28/the-case-for-reprimanding-or-firing-naval-war-college-firing-prof-john-schindler-under-federal-law/)

    You hear about cancellation of Int’l Seapower Symposium? Just 1 of many ways Tea Party has hurt US nat’l security. http://nationalinterest.org/commentary/the-tea-party-national-security-9264

    6:05 AM – 21 Oct 13

    Just woke from weird dream where Hill GOP went nuts, shut USG for 16 days, nearly caused epic financial disaster, & got *nothing* in return.

    2:10 PM – 16 Oct 13

    Boehner & GOP House leadership now waking from 3-week bender, realizing they’ve blown all their cash & cred and got…a hangover in return.

    8:44 AM – 16 Oct 13

    GOP biz community tiring of TP antics / RT @beingmyselfaok Some Tea Party Reps find signs of pol backlash #Amash http://wapo.st/1e2QulF

    2:47 AM – 7 Oct 13

    Know who Tea Party on Hill is really helping? China. “Financial jihad” is about 2 have serious consequences. #default http://www.bloomberg.com/news/2013-10-03/congress-plays-with-fire-as-asia-examines-debt.html

    6:34 PM – 3 Oct 13

    There is another provision related to propaganda not authorized by specific Congressional authorization that may be revelant to Mr. Schindler’s public NSA advocacy, which could reasonably be estimated to have involved dozens if not hundreds of hours spent online since June 2013 engaging in public relations activities on NSA’s behalf (for which he was NOT hired by the Naval War College):

    ii. Recurring Appropriations Act provisions—e.g., DoD Appropriations Act for Fiscal Year 2004, P.L. 108-87, §§ 8001, 8012.

    1. No use of appropriated funds for “publicity or propaganda purposes not authorized by the Congress.”

    I look forward to seeing the Naval War College, the Office of Special Counsel, and if necessary the U.S. Navy’s Inspector General’s office issue a public statement or settlement of this issue in a satisfactory manner.

    Best regards,
    A taxpaying American citizen

  8. emptywheel says:

    @Snoopdido: Oh, I’ve LONG been on Schindler’s list. It’s just he doesn’t engage as he used to for a variety of reasons. For some reason that one really pissed him off though.

  9. bloodypitchfork says:

    @GKJames:quote:”After all, such a statute would simply ensure that American’s rights under the Constitution were protected,…”unquote

    ummm..I must be stupid. Here I thought the Constitution IS the legal document that ENSURES our inherent rights are protected. Why would you need a statute to do same? I thought the Constitution was the Supreme LAW of the Land, no? Unless I missed some concepts like..”shall not be infringed” ..and “shall not be construed” etc. Please enlighten me.

  10. Snoopdido says:

    @emptywheel: His ad hominem response of “I find literature PhDs make the very best lawyers AND intelligence gurus!” is particularly funny coming from a history PhD as he somehow thinks only THEY make the very best lawyers AND intelligence gurus.

    History PhDs must outrank literature PhDs? Really? Is there a rule or law somewhere that says that? Does he not grasp the irony of his own tweets?

  11. Peterr says:

    This makes discussions of what the meaning of “is” is in the era of Bill Clinton seem tame by comparison.

    In those days, it related to blowjobs. Today, it’s about the rape of an entire worldwide communications system, under the color of authority.

  12. GKJames says:

    @bloodypitchfork: You’re right, of course, but am not sure I can be much help. While we’re certainly a country that talks ad nauseam about the Constitution and loves to steep itself in national myths about freedom and justice for all, we also appear to have little problem with elected representatives’ using contrived theater as a substitute for meaningful legislation and oversight. We’re top-notch in marketing illusions of substance, but no longer serious about the grubby, unglamorous but important stuff that needs doing in order to keep legitimate democracy intact. Mind you, I’m still trying to understand how we can have a court that’s not only secret, but which doesn’t allow for a legitimate adversarial proceeding. Consequently, my suggestion about a statute is both a surrender to the reality that, as a whole, the country isn’t much interested in meaningful restraints on the national security apparatus’s activities, and an opportunity to have the apparatus confirm what I believe to be a consistent (meaning over the course of decades) pattern of bad faith.

  13. Jeff Kaye says:

    @joanneleon:

    Is there any chance that Alexander could make statements about the NSA and deny things done by this unit [SCS]? It’s not clear to me whose agency this is under.

    I think that’s a very good question.

    Here’s a 2000 Le Monde article on SCS:
    http://cryptome.org/cia-nsa-scs.htm

    In the United States, the NSA and the CIA have created a common agency, named Special Collection Service (SCS), whose activities are highly secret and whose role is to give to Americans, in all clandestinity, information on new means to overcome the difficulties encountered by interception operations caused by progress in encryption for protection of world communications.

    The existence of the SCS is not officially recognized. It is known only that this new federal agency brings together CIA and NSA teams expert in decrypting of transmissions especially protected against any intrusion which comes from the outside.

  14. orionATL says:

    congratulations to red sox and fans!

    good players in lots of positions.

    great pitching and hitting.

    great beards.

    a fun team to watch.

  15. Greg Bean (@GregLBean) says:

    Like with Canada’s spying on Brazil we now find out about Australia’s contribution to the 5 Eyes club.

    “US intelligence agencies are using Australian embassies throughout Asia to intercept data and gather information across the continent, according to the latest report based on documents leaked by NSA whistleblower Edward Snowden.

    Data collection facilities operate out of the embassies in Jakarta, Bangkok, Hanoi, Bejing, and Dili, according to Fairfax media. There are also units in the Australian High Commission in Kuala Lumpur, the most populated city in Malaysia, and Port Moresby, the capital of Papua New Guinea. [snip] … intelligence officers speaking to Fairfax Media (Australia) now say that it is good to stop terrorism and international crime, “but the main focus is political, diplomatic and economic intelligence.”

    See here: http://rt.com/news/nsa-australian-embassies-asia-intelligence-998/

  16. harpie says:

    @Jeff Kaye: Jeff, thanks again, as always, for all of the great information and analysis here in comments, at FDL and on twitter. It’s very much appreciated.

  17. lysias says:

    @Jeff Kaye: How convenient for Keith Alexander if statements he makes about NSA don’t apply to CSS, as he happens to head both organizations:

    Keith Brian Alexander (born December 2, 1951) is a four-star general in the United States Army[1] who currently serves as Director of the National Security Agency (DIRNSA), Chief of the Central Security Service (CHCSS) and Commander of the United States Cyber Command.

    By the way, there’s talk that the next DIRNSA will not command the Cyber Command. Looks like somebody is unhappy about Alexander’s accumulation of offices.

  18. thatvisionthing says:

    @bloodypitchfork: Marcy in July:

    http://www.correntewire.com/the_entire_point_of_the_fourth_amendment_was_to_ban_this_kind_of_general_warrant_marcy_wheeler

    Scott Horton: Are there any laws that actually put teeth in the Fourth Amendment where you’re in trouble for violating it if you’re a government employee? Or not?

    Marcy Wheeler: No. No. They’ve gotten rid of all those teeth.

    But:

    Marcy Wheeler: This is really important for listeners to understand. When everyone gets out there and says this is legal and courts have approved it, that’s – that’s a real stretch. Because what courts have never had the opportunity to do, whether it’s the secret court, the FISA court which has only disapproved something like teens number of requests since 2001, whether it’s that court or whether it’s, you know, your federal court down the street, the courts have never been looking at the entire program.

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