NSA’s Notion of Regaining Confidence

In my apparent never-ending job of documenting all the lies, half truths, and misrepresentations the Intelligence Community has told Congress, I wanted to look at one more document from the chunk the I Con released last week: the briefing given the House Intelligence Committee on the phone dragnet on October 21, 2009, during the early part of the PATRIOT Act reauthorization debate. The briefing came three weeks after then-House Intelligence Chair Silvestre Reyes requested a document on the dragnet (which would end up being the notice provided to Congress).

Here’s the last entry in the October 21 briefing’s description of the efforts to fix the problems with the dragnet.

On September 3, 2009, after receiving extensive demonstrations and briefings regarding the BR FISA program, the FISC signed the Renewal Order for BR
FISA. The order, which will remain in effect through October 30, 2009, restores to NSA the authority to make Reasonable Articulable Suspicion (RAS) determinations as to whether specific telephone identifiers may be used as “seeds” for querying against the BR FISA metadata. The signing of the renewal order is viewed as an indication that NSA is regaining the Court’s confidence in its ability to safeguard US Person privacy while using BR FISA data for vital national security missions. [my emphasis]

That is, the NCTC and NSA claimed to HPSCI — one of two committees getting the most information on the phone dragnet — that “NSA is regaining the Court’s confidence in its ability to safeguard US Person privacy.”

But the September 3 reauthorization of the phone dragnet — the last interaction with FISC referenced in the briefing — was not the most recent event prior to this briefing.

The last event we know of, at least, came when, on September 21 and 23, Judge Reggie Walton — the judge who had been working through this process for 9 months and on September 3 had ordered NSA to restrict access to the phone dragnet data to those who had been specially trained for it — had a DOJ National Security Division attorney tell him, orally, of two “likely violations” of these orders. NSA employees were emailing results of phone dragnet queries around — had even set up an email list of 189 analysts — including to people who had not received the special training required by the Court.

Worse, NSA didn’t inform Walton of the violations.

The NSD attorney advised that NSD and NSA were investigating the foregoing incidents and expected to be in a position to submit a preliminary written notice to the Court in short order. As of the entry of this Order, the Court has not yet received such a notice.

The Court is deeply troubled by the incidents described above, which have occurred only a few weeks following the completion of an “end to end review” by the government of NSA’s procedures and processes for handling the BR metadata, and its submission of a report intended to assure the Court that NSA had addressed and corrected the issues giving rise to the history of serious and widespread compliance problems in this matter and had taken the necessary steps to ensure compliance with the Court’s orders going forward.

In his September 25 order, Walton instructed NSA to brief him on September 28 on these latest violations.

In other words, as far as the declassified record thus far shows, FISC had newfound reason to be “deeply troubled” by violations (and probably, NSA’s failure to notice the court on them) when it briefed the House Intelligence Committee on October 21.

And the Administration didn’t tell HPSCI that, right in the middle of debates about PATRIOT (and therefore Section 215) reauthorization.

And yet the I Con and its defenders insist — insist! — Congress was fully informed when it reauthorized PATRIOT.

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.

2 replies
  1. Greg Bean (@GregLBean) says:

    One of the distinctions between liars and honest folk is that honest folk require no agreed, prefabricated, set of agreed lies. https://s3.amazonaws.com/s3.documentcloud.org/documents/813055/nsa-talking-points.pdf

    It is hard for a group to lie and keep their stories from contradicting previous lies/liars. Honest folk have no such issue. You can tell the honest truth a thousand different ways and it is always consistent. Courts, police, everyone, knows this simple fact.

    Only liars need to organize their story in advance.

    The contradictions that are becoming blatantly obvious with each new retelling of the story, with each new legal interpretation, with each new swear-to-the-gods-I-wouldn’t-lie baldfaced lie is that it is not consistent. There are no unquestionably consistent facts, every telling exposes a new twist that raises a question that exposes an inconsistency that undermines a previous telling and is therefore fairly obviously a lie.

    The only question left is how much rope will these assholes be given before they are throttled?

    It is no longer a matter of IF but WHEN. And will they take the President with them or will he pull the level that opens the drop door?

    Personally, I hope they take the President with them.

  2. bloodypitchfork says:

    quote:”In my apparent never-ending job of documenting all the lies, half truths, and misrepresentations the Intelligence Community has told Congress, I wanted to look at one more document from the chunk the I Con released last week:…” unquote

    This is why I want to THANK YOU for your taking on this “job”. Your work is superb. I wish I could contribute financially to your endeavor. Unfortunately, as one of the victims of the bankers assault on the middle class, I’ve been reduced to minimum SS, which barely covers my sustenance. So this is the least I can do.

    What is astounding is the fact that no one, not one single member of the Intelligence community has been charged with lying to Congress, not to mention scumbags like Feinstein lying to the public. Meanwhile, many, many citizens with no power whatsoever, are being charged, prosecuted and convicted of “lying to a Federal agent”. Makes me fucking sick.

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