8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program

Between these two posts (one, two), I’ve shown that the Executive Branch never stopped illegally wiretapping Americans, even after the worst part of it got “shut down” after the March 2004 hospital confrontation. Instead, they got FISC to approve collection with certain rules, then violated the rules consistently. When that scheme was exposed with the transition between the Bush and Obama Administrations, the Executive adopted two new strategies to hide the illegal wiretapping. First, simply not counting how many Americans they were illegally wiretapping, thus avoiding explicit violation of 50 USC 1809(a)(2). And, starting just as the Executive was confessing to its illegal wiretapping, moving — and expanding it — overseas. Given that they’re collecting content, that is a violation in spirit, at least, of Section 704 of FISA Amendments Act, which requires a warrant for wiretapping an American overseas (the government probably says this doesn’t apply because GCHQ does much of the wiretapping).

One big discovery the Snowden leaks have shown us, then, is that the government has never really stopped Bush’s illegal wiretapping program.

That actually shows in the PR response the government has adopted, which has consisted of an affirmative and a negative approach. The affirmative approach emphasizes the programs — PATRIOT Act Section 215 and Section 702 of FAA — that paralleled the illegal wiretap program (I’m not conceding either is constitutional, but only the upstream collection under 702 has been deemed an explicit violation of the law). This has allowed the government to release a blizzard of documents — Transparency!™ — that reveals some shocking disclosures, without revealing the bigger illegal programs. But note how, when the revelations touched on the Internet dragnet (which should be no more revelatory than the phone dragnet), ODNI tried to obscure basic details by hiding dates (even if they left those dates in one URL).

Meanwhile, the I Con has invested energy in trying to undermine every story that touches on the larger illegal wiretapping programs. When WSJ reported that the NSA has access to 75% of the Internet traffic in the US, I Con released a misleading rebuttal. When, in the wake of a NYT report that NSA and GCHQ were using vastly expanded contact chaining (which we now know was initiated just as the illegal domestic program was being revealed) to produce dossiers on people, even inattentive members of Congress started asking about upstream collection and EO 12333 violations, top officials first distorted the questions then refused to answer them. When various outlets in Europe revealed how much spying NSA and GCHQ were doing on Europeans, the I Con unleashed their secret weapon, the “conjunction,” which succeeded in getting most National Security journalists to forget about GCHQ’s known, voracious collection.

Then there’s the response to WaPo’s report that NSA had returned to its old ways of stealing data from Google and Yahoo. At first, I thought they were just engaging in their typical old non-denial denials. They were doing that, sure, but as Bart Gellman revealed during his debate with Michael Hayden (just after 44:00), they also tried to undermine WaPo’s report by refusing to engage at all.

In my most recent story, the scenario was different. This was also about getting information from big Internet companies. This time, I said, I’ve now got evidence that besides going in through the front door, in this PRISM process where you tell the companies, please hand over this information under court authority, that the NSA and its British counterpart are breaking into the private internal networks of Google and Yahoo, and taking information. They’re doing it from points overseas because it couldn’t be done lawfully inside the United States. And on that one, they decided to not engage at all.

They didn’t do the most extreme version of it, which has happened with me, which is they say you have information that purports to be highly classified information about communications intelligence. If that is authentic information and if you publish it, you are subject to the penalties of 18 USC 798, and then a bunch of words that you can’t put in the newspaper.

But this time they simply decided not to engage at all. They said, we’re not going to answer any questions, we’re not going to tell you what we wish you would or wouldn’t publish about this this, and then the next day and the day after that, they came out with four statements denouncing the story, appearing to deny the story but not actually denying it.

In response to this treatment, the WaPo did a remarkable fisking of Administration pushback claims and — in the process — released more sensitive documents to prove they were right. Ha!

Almost 8 years ago, when NYT revealed the illegal wiretap program, the Bush Administration largely succeeded in hiding the biggest legal problems with the program by focusing attention on just a small fraction of the program, which they dubbed the “TSP,” while hiding the rest. Remarkably, the I Con is still using precisely the same strategy to hide what remains structurally the same illegal wiretap program that has, however, ballooned in size.

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.

18 replies
  1. Anonsters says:

    Also along these lines: vague warnings about disastrous consequences, suggestions that everyone has the facts all wrong and should shut up because they don’t know what they’re talking about, stressing the good-faith and hard-work and America! of workers in the IC? Absolutely, Ben Wittes will carry your water, intelligence community.

    I like how he either completely fails to see the screamingly obvious or just ignores it, when suggesting that HUMINT revelations are next and that therefore our intelligence-gathering capabilities are all totally ruined. The screamingly obvious is that SIGINT as presently conducted directly impacts—by directly infringing on—Americans’ privacy interests. Our clandestine officers in foreign countries gathering HUMINT do not. But hey, because we have SIGINT leaks, that must mean all our intelligence capabilities are doomed. Fucking leakers.

    Really, Ben Wittes? I was prepared to give him the benefit of the doubt. That post on Lawfare has confirmed him, for me, as little more than a shill.

  2. emptywheel says:

    @Anonsters: See, I would ask a different question.

    Why are you ignoring the real threat, climate change.

    Every single person who places this spying program over doing something about climate is betraying the country and the world. And they don’t even see that their obsession protecting this program is just a distraction that will get us all killed.

  3. Anonsters says:

    @emptywheel:

    I’m not sure what you would expect our intelligence community to do about climate change, though. Spy on carbon-based emissions? :P

    That seems like more of an issue for the bosses to get off their asses on. But since the bosses are elected politicians…. Yeah. We’re doomed.

  4. GKJames says:

    Don’t speak too soon. It may not be long before climate change in fact becomes one of the rationales justifying the dragnet. After all, we must understand what our enemies are up to. The just might be looking to do us environmental harm.

    The apparatus is a behemoth of power and money. It needs to be fed. Close off one avenue, it’ll find another. The arguments’ll be just as bogus, of course, but given the absence of an adverse effect to date — even with Snowden — bogus is unlikely to be an impediment to anything.

  5. Mauimom says:

    I don’t know if you stoop so low as to watch network tv, CBS in particular, but I have become a fan of NCIS. Last night’s episode introduced a new character who’s “from the NSA” and there are a few remarks re “yeah, we’ve been taking a beating lately. We’re not as bad as they say,”

    Of course prior episodes, even without focusing on the NSA, have the stalwarts constantly tracking, doing background checks– all the elements that make law enforcement [and “terror prevention”] so swift, without as much as a thought of what this sort of stuff REALLY is.

  6. emptywheel says:

    @Anonsters: Sure. Then let’s shut down NSA and give it to NASA. Just one budget line!

    Or some to DHS on resilience issues.

    But the whining about NatSec that ignores the biggest threat shows that it’s the contractor provided product they want, not security.

  7. anon says:

    Watch the most recent episode on NCIS for NSA propaganda pushed out to the sheeple.

    Season 11 Episode 9.

    I find it highly unlikely the NSA did not push this story line out.

  8. Anonsters says:

    @emptywheel:

    I don’t know. I think it’s best to keep separable things separate. Climate change, for example, is too important an issue to let it get caught up in the weeds of national security policy. Climate change isn’t a national security threat. It’s an existential threat. Trying to poke at it around the edges, by trying to address it from multifarious perspectives, won’t do us any good. The only thing that will do us any good is to realize the enormity of the problem, the enormity of the consequences, and the enormity of the challenge addressing it represents. And then to address it, head-on.

  9. orionATL says:

    ew wrote:

    “..But note how, when the revelations touched on the Internet dragnet (which should be no more revelatory than the phone dragnet), ODNI tried to obscure basic details by hiding dates (even if they left those dates in one URL)…”

    i had to smile when i read this post earlier today about the part where doj censors had left the dates they were trying to hide in a URL.

    every dragon, however monstrous, has a chink in it’s armorplates; discover it, and that’s how you kill them.

  10. orionATL says:

    @Anonsters:

    “it’s an existential threat.”

    indeed it is, and indeed it does not need to be incorporated into the u.s.’s national security fuccups.

    climate change is a threat to the species, not one particular nation.

    thinking otherwise is foolishly self- centered for a nation. there can be no relief for any nation with worldwide water and food shortages. all hell will slowly break loose and it will have political names (like today’s al-q),

    but those labels will only serve to obscure the underlying reality of hunger for millions (more likely tens of millions) of desperate humans.

  11. Jockular says:

    Why does Gellman not set a context for the back and forth about today’s rules and compliance? How many Duke students will have really absorbed how J Edgar Hoover used spy info for political purposes? how RFK tapped MLK’s phone? Even if there is letter-of-the-(secret)-law today, we may have in future a tough president who breaks whatever rules obtain. The real danger is building a spying infrastructure which could end democracy under control by a future j Edgar or LBJ or RFK or Cheney!

  12. The Lone Apple says:

    For all the NSA’s crying about threats, they seem to have dropped the ball spectacularly when it comes to things like the Boston Marathon bombing or the Westgate Mall massacre. Did these plotters somehow elude the NSA with their brilliant skills or is it simply that the NSA is so busy sweeping it all up that they can’t do a damned thing with it. In other words, they are spending money and providing nothing tangible now but collecting and storing the data for some future use — for what?

  13. emptywheel says:

    @The Lone Apple: WRT the Boston Marathon attack, they probably don’t collect on Chechen extremists bc we like their pressure on Putin. Moreover, whatever contact chaining they were able to do may have been undermined by their efforts to strip things like pizza joints — a pizza joint seems to play a central role in the Tsarnaev brothers’ plot.

    As for the Westgate plot, word is we did have advance warning of that. But I do suspect we didn’t actually read whatever intercepts we had about it, because we don’t have the translators. In Somalia, we must rely on metadata even more than in other places bc we simply don’t have the translators to look at content unless we know it’s valuable.

  14. bevin says:

    “WRT the Boston Marathon attack, they probably don’t collect on Chechen extremists bc we like their pressure on Putin…”
    I don’t doubt that you are right.
    But the implications are worth thinking about: the Al Qaeda extremists put pressure on Iran and Syria. The US undoubtedly approves of that.
    Saudi backed militias put pressure on Hezbollah, too. And we know that the US Ambassador in Beirut is enthusiastic about that.

    Pressure is put on China, in Central Asia, too by Uighur extremists and Tibetan nationalists whose activities are not disapproved of in US official circles.
    At risk of seeming cynical I’d say that the only “extremists” that nobody in the US Intelligence community would ever exempt from collection would be of the domestic variety, climate change activists, for example, anti-zionists and, that old favourite, socialists and syndicalists.

  15. Cujo359 says:

    In my more pessimistic moments, I think that until someone important goes to jail over FISA violations, no one in the “intelligence community” is going to take it seriously. The power to classify information, plus the power to appeal to fears of rampaging foreigners, means they’ll probably always get away with this crap, and they’ll certainly think they can.

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