In their stories catching up to my past reporting on the Semiannual Compliance Report‘s discussion of backdoor searches, the Guardian and NYT focus on NSA and (in the case of the NYT) CIA. Neither mentions that the FBI also does such back door searches, and has had the authority to do so longer than the foreign intelligence agencies.
That may be because Ron Wyden always focuses on the NSA, and as a result James Clapper mentioned the NSA in his letter to Wyden.
The public record makes clear that FBI has this authority. A footnote to one of the paragraphs describing oversight over NSA and CIA’s back door searches explains that “FBI’s minimization procedures had already provided that agency the ability,” followed by redacted descriptions.
When Bates approved back door searches in his October 3, 2011 opinion, he pointed to FBI’s earlier (and broader) authorities to justify approving it for NSA and CIA. While the mention of FBI is redacted here, at that point it was the only other agency whose minimization procedures had to be approved by FISC, and FBI is the agency that applies for traditional FISA warrants.
[redacted] contain an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information. See [redacted]. In granting [redacted] applications for electronic surveillance or physical search since 2008, including applications targeting United States persons and persons in the United States, the Court has found that the [redacted] meet the definitions of minimization procedures at 50 U.S.C. §§ 1801(h) and 1821(4). It follows that the substantially-similar querying provision found at Section 3(b)(5) of the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons.
So since 2008, FBI has had the ability to do back door searches on all the FISA-authorized data they get, including taps targeting US persons.
When I saw ODNI’s tweets (above) admitting to back door searches, I realized that ODNI treated classification of FBI’s back door searches differently than it did CIA and NSA’s. In addition to the redactions in the footnote above, it also redacted its description of the review of FBI’s back door searches.
Indeed, Clapper’s letter only admits to back door searches of data collected on foreign targets, not American ones.
As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA.
Yet Bates makes it clear (even though the reference to FBI is redacted) that FBI can even back door search data collected in the United States on US persons.
Given how little we know about back door searches, it’s hard to know which is worse. As Bates notes, there will likely be more Americans’ records accessible via a back door search off an American target. But at least in that case, FISC has found there is probable cause to believe the target is a foreign agent or terrorist. Under Section 702, the Agencies can collect data on people without that same level of proof, and do so in much greater volume. Certainly, Ron Wyden and Mark Udall seem primarily concerned about the Section 702 targeting (which includes the FBI, as the Compliance report makes clear).
Still, Clapper’s greater secrecy about FBI’s back door searches makes me worried they are in some way even worse.
On Friday, James Clapper finally provided Ron Wyden an unclassified response to a question he posed on January 29, admitting that the NSA conducts back door searches. (via Charlie Savage)
As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA.
It has taken just 9 months for Clapper to admit that, contrary to months of denials, the NSA (and FBI, which he doesn’t confirm but which the Report makes clear, as well as the CIA) can get the content of Americans’ communications without a warrant. But Clapper’s admission that this fact was declassified in August should disqualify Vice Admiral Mike Rogers from confirmation as CyberComm head (I believe he started serving as DIRNSA head, which doesn’t require confirmation, yesterday). Because it means Rogers refused to answer a question the response to which was already declassified.
Udall: If I might, in looking ahead, I want to turn to the 702 program and ask a policy question about the authorities under Section 702 that’s written into the FISA Amendments Act. The Committee asked your understanding of the legal rationale for NASA [sic] to search through data acquired under Section 702 using US person identifiers without probable cause. You replied the NASA–the NSA’s court approved procedures only permit searches of this lawfully acquired data using US person identifiers for valid foreign intelligence purposes and under the oversight of the Justice Department and the DNI. The statute’s written to anticipate the incidental collection of Americans’ communications in the course of collecting the communications of foreigners reasonably believed to be located overseas. But the focus of that collection is clearly intended to be foreigners’ communications, not Americans. But declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications collected under Section 702 and conduct warrantless searches for the communications of specific Americans. Now, my question is simple. Have any of those searches been conducted? Rogers: I apologize Sir, I’m not in a position to answer that as the nominee. Udall: You–yes. Rogers: But if you would like me to come back to you in the future if confirmed to be able to specifically address that question I will be glad to do so, Sir. Udall: Let me follow up on that. You may recall that Director Clapper was asked this question in a hearing earlier this year and he didn’t believe that an open forum was the appropriate setting in which to discuss these issues. The problem that I have, Senator Wyden’s had, and others is that we’ve tried in various ways to get an unclassified answer — simple answer, yes or no — to the question. We want to have an answer because it relates — the answer does — to Americans’ privacy. Can you commit to answering the question before the Committee votes on your nomination? Rogers: Sir, I believe that one of my challenges as the Director, if confirmed, is how do we engage the American people — and by extension their representatives — in a dialogue in which they have a level of comfort as to what we are doing and why. That is no insignificant challenge for those of us with an intelligence background, to be honest. But I believe that one of the takeaways from the situation over the last few months has been as an intelligence professional, as a senior intelligence leader, I have to be capable of communicating in a way that we are doing and why to the greatest extent possible. That perhaps the compromise is, if it comes to the how we do things, and the specifics, those are perhaps best addressed in classified sessions, but that one of my challenges is I have to be able to speak in broad terms in a way that most people can understand. And I look forward to that challenge. Udall: I’m going to continue asking that question and I look forward to working with you to rebuild the confidence. [my emphasis]
I assume that now that Clapper has given him the okay to discuss unclassified topics with Congress, Rogers will now provide a forthright answer, all the while claiming he was ignorant about the answer at the time (fine! then make me DIRNSA because I know more about it!). But Rogers’ response went far beyond such an answer. He refused — not just in the hearing but even after it — to commit to answering a question with a completely unclassified answer. And as I pointed out in this post, his written answers were even more obfuscatory. I don’t get a vote. But I think this should disqualify him as a nominee.
Update: Here’s the exchange in Rogers’ questions for the record on back door searches.
What is your understanding of the legal rationale for NSA to search through data acquired under section 702 using U.S. Persons identifiers without probable cause?
Information acquired by NSA under Section 702 of FI SA must be handled in strict accordance with minimization procedures adopted by the Attorney General and approved by the Foreign Intelligence Surveillance Court. As required by the statute and certifications approving Section 702 acquisitions, such activities must be limite d to targeting non-U.S. persons reasonably believed to be located outside the United States . NSA’s Court-approved procedures only permit searches of this lawfully acquired data using U.S. person identifiers for valid foreign intelligence purposes and under the oversight of the Department of Justice and Office of Director of National Intelligence.
Yesterday, the Senate Armed Services Committee held a hearing for Vice Admiral Mike Rogers to serve as head of Cyber Command (see this story from Spencer about how Rogers’ confirmation as Cyber Command chief serves as proxy for his role as Director of National Security Agency because the latter does not require Senate approval).
Many of the questions were about Cyber Command (which was, after all, the topic of the hearing), but a few Senators asked questions about the dragnet that affects us all.
In one of those exchanges — with Mark Udall — Rogers made it clear that he intends to continue to hide the answers to very basic questions about how NSA conducts warrantless surveillance of Americans, such as whether the NSA conducts back door searches on American people.
Udall: If I might, in looking ahead, I want to turn to the 702 program and ask a policy question about the authorities under Section 702 that’s written into the FISA Amendments Act. The Committee asked your understanding of the legal rationale for NASA [sic] to search through data acquired under Section 702 using US person identifiers without probable cause. You replied the NASA–the NSA’s court approved procedures only permit searches of this lawfully acquired data using US person identifiers for valid foreign intelligence purposes and under the oversight of the Justice Department and the DNI. The statute’s written to anticipate the incidental collection of Americans’ communications in the course of collecting the communications of foreigners reasonably believed to be located overseas. But the focus of that collection is clearly intended to be foreigners’ communications, not Americans. But declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications collected under Section 702 and conduct warrantless searches for the communications of specific Americans. Now, my question is simple. Have any of those searches been conducted?
Rogers: I apologize Sir, I’m not in a position to answer that as the nominee.
Rogers: But if you would like me to come back to you in the future if confirmed to be able to specifically address that question I will be glad to do so, Sir.
Udall: Let me follow up on that. You may recall that Director Clapper was asked this question in a hearing earlier this year and he didn’t believe that an open forum was the appropriate setting in which to discuss these issues. The problem that I have, Senator Wyden’s had, and others is that we’ve tried in various ways to get an unclassified answer — simple answer, yes or no — to the question. We want to have an answer because it relates — the answer does — to Americans’ privacy. Can you commit to answering the question before the Committee votes on your nomination?
Rogers: Sir, I believe that one of my challenges as the Director, if confirmed, is how do we engage the American people — and by extension their representatives — in a dialogue in which they have a level of comfort as to what we are doing and why. That is no insignificant challenge for those of us with an intelligence background, to be honest. But I believe that one of the takeaways from the situation over the last few months has been as an intelligence professional, as a senior intelligence leader, I have to be capable of communicating in a way that we are doing and why to the greatest extent possible. That perhaps the compromise is, if it comes to the how we do things, and the specifics, those are perhaps best addressed in classified sessions, but that one of my challenges is I have to be able to speak in broad terms in a way that most people can understand. And I look forward to that challenge.
Udall: I’m going to continue asking that question and I look forward to working with you to rebuild the confidence. [my emphasis]
The answer to the question Rogers refused to answer is clearly yes. We know that’s true because the answer is always yes when Wyden, and now Udall, ask such questions.
But we also know the answer is yes because declassified parts of last August’s Semiannual Section 702 Compliance Report state clearly that oversight teams have reviewed the use of this provision, which means there’s something to review.
As reported in the last semiannual assessment, NSA minimization procedures now permit NSA to query its databases containing telephony and non-upstream electronic communications using United States person identifiers in a manner designed to find foreign intelligence information. Similarly, CIA’s minimization procedures have been modified to make explicit that CIA may also query its databases using United States person identifiers to yield foreign intelligence information. As discussed above in the descriptions of the joint oversight team’s efforts at each agency, the joint oversight team conducts reviews of each agency’s use of its ability to query using United States person identifiers. To date, this review has not identified any incidents of noncompliance with respect to the use of United States person identifiers; as discussed in Section 4, the agencies’ internal oversight programs have, however, identified isolated instances in which Section 702 queries were inadvertently conducted using United States person identifiers. [my emphasis]
It even obliquely suggests there have been “inadvertent” violations, though this seems to entail back door searches on US person identifiers without realizing they were US person identifiers, not violations of the procedures for using back door searches on identifiers known to be US person identifiers.
Still, it is an unclassified fact that NSA uses these back door searches.
Yet the nominee to head the NSA refuses to answer a question on whether or not NSA uses these back door searches.
And it’s not just in response to this very basic question that Rogers channeled the dishonest approach of James Clapper and Keith Alexander.
As Udall alluded, at the end of a long series of questions about Cyber Command, the committee asked a series of questions about back door searches and other dragnet issues. They asked (see pages 42-43):
I believe every single one of Rogers’ answers — save perhaps the question on traditional FISA — involves some level of obfuscation. (See this post for further background on what NSA’s Raj De and ODNI’s Robert Litt have admitted about back door searches.)
Consider his answer on searches of the “corporate store” as one example.
What is your understanding of the legal rationale for searching through the “Corporate Store” of metadata acquired under section 215 using U.S. Persons identifiers for foreign intelligence purposes?
The section 215 program is specifically authorized by orders issued by the Foreign Intelligence Surveillance Court pursuant to relevant statutory requirements. (Note: the legality of the program has been reviewed and approved by more than a dozen FISC judges on over 35 occasions since 2006.) As further required by statute, the program is also governed by minimization procedures adopted by the Attorney General an d approved by the FISC. Those orders, and the accompanying minimization procedures, require that searches of data under the program may only be performed when there is a Reasonable Articulable Suspicion that the identifier to be queried is associated with a terrorist organization specified in the Court’s order.
Remember, not only do declassified Primary Orders make it clear NSA doesn’t need Reasonable Articulable Suspicion to search the corporate store, but PCLOB has explained the possible breadth of “corporate store” searches plainly.
According to the FISA court’s orders, records that have been moved into the corporate store may be searched by authorized personnel “for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms.”71 Analysts therefore can query the records in the corporate store with terms that are not reasonably suspected of association with terrorism. They also are permitted to analyze records in the corporate store through means other than individual contact-chaining queries that begin with a single selection term: because the records in the corporate store all stem from RAS-approved queries, the agency is allowed to apply other analytic methods and techniques to the query results.72 For instance, such calling records may be integrated with data acquired under other authorities for further analysis. The FISA court’s orders expressly state that the NSA may apply “the full range” of signals intelligence analytic tradecraft to the calling records that are responsive to a query, which includes every record in the corporate store.73
There is no debate over whether NSA can conduct back door searches in the “corporate store” because both FISC and PCLOB say they can.
Which is probably why SASC did not ask whether this was possible — it is an unclassified fact that it is — but rather what the legal rationale for doing so is.
And Rogers chose to answer this way:
The last part of this answer is either downright ignorant (though I find that unlikely given how closely nominee responses get vetted) or plainly non-responsive. The question was not about queries of the dragnet itself — the “collection store” of all the data. The question was about the “corporate store” — the database of query results based off those RAS approved identifiers. And, as I said, there is no dispute that searches of the corporate store do not require RAS approval. In fact, the FISC orders Rogers points to say as much explicitly.
And yet the man Obama has picked to replace Keith Alexander, who has so badly discredited the Agency with his parade of lies, refused to answer that question directly. Much less explain the legal rationale used to conduct RAS-free searches on phone query results showing 3rd degree connections to someone who might have ties to terrorist groups, which is what the question was.
Which, I suppose, tells us all we need to know about whether anyone plans to improve the credibility or transparency of the NSA.
I’m re-reading all the declarations released last December in the Jewel case (the EFF-tied lawsuit challenging the dragnet) … because I’m like that.
But I also want to call attention to details in this court filing challenging James Clapper’s most recent declaration about what has been declassified. In addition to pointing out that far more has been declassified on the upstream collection and the ineffectiveness of the phone dragnet, but contrary to court orders, the government is still withholding some declarations.
Those declarations are:
Given that we have a much better understanding of the relative happenings in the dragnets, I wanted to lay these dates out.
Back in James Clapper’s very first attempt to dismiss his lies to Ron Wyden, he said,
“What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that,” Clapper told National Journal in a telephone interview.
Apparently, however, NSA’s partner goes one step beyond that, with NSA”s assistance: GCHQ pores through bulk collected webcam photos, including those of US persons, of Yahoo’s users.
Britain’s surveillance agency GCHQ, with aid from the National Security Agency, intercepted and stored the webcam images of millions of internet users not suspected of wrongdoing, secret documents reveal.
GCHQ files dating between 2008 and 2010 explicitly state that a surveillance program codenamed Optic Nerve collected still images of Yahoo webcam chats in bulk and saved them to agency databases, regardless of whether individual users were an intelligence target or not.
This includes the 3 to 11% of images that show nudity.
Sexually explicit webcam material proved to be a particular problem for GCHQ, as one document delicately put it: “Unfortunately … it would appear that a surprising number of people use webcam conversations to show intimate parts of their body to the other person. Also, the fact that the Yahoo software allows more than one person to view a webcam stream without necessarily sending a reciprocal stream means that it appears sometimes to be used for broadcasting pornography.”
The document estimates that between 3% and 11% of the Yahoo webcam imagery harvested by GCHQ contains “undesirable nudity”.
Given past discussions of circumcision in regards to terrorist suspects, it’s only a matter of time before GCHQ defends its nudity stash because such evidence can be proof of radicalization (heh). Plus, we already know that NSA and GCHQ like to use targets’ online porn habits to discredit them.
Coming soon to an “oversight” hearing near you: James Clapper refuses to talk about this invasion of an American company’s customers’ privacy because it occurs under EO 12333 and liaison partnerships, and therefore is not subject to Congressional oversight.
“It’s tough on my family,” James Clapper said in an interview with the Daily Beast of observations he’s a liar. Especially his son, who is a high school teacher (though Clapper didn’t explain why his profession led his son to internalize accusations made against him).
The charges against his integrity bother Clapper. “I would rather not hear that or see that,” he said. “It’s tough on my family, I will tell you that. My son is a high school teacher and he has a tendency, or he is getting over it, to internalize a lot of this.”
And yet this man who thinks it unfair to question a public servant’s integrity after he lies blatantly, who has no idea why Edward Snowden did what he did, why he leaked proof that the NSA was collecting the phone records of most Americans, why Snowden leaked evidence of bulk collection (that includes Americans) overseas, why he leaked details on the NSA’s corruption of encryption.
Abdur-Rahim taught at the girls school surveilled by the NYPD — the school, which was accredited by the state of NJ — was actually in her home — and now teaches at another of the schools scoped out by the cops.
Zaimah Abdur-Rahim resides at [address removed]. She is currently a math teacher at Al Hidaayah Academy (“AHA”), a position she has held since 2010. A record of the NYPD’s surveillance of AHA appears in the Newark report, which includes a photograph and de scription of the school . Abdur-Rahim was also the principal of Al Muslimaat Academy (“AMA”), a school for girls grades five through twelve, from 2002 through 2010. Like AHA, a record of the NYPD’s surveillance of AMA appears in the Newark report, including a photograph, the address, and notations stating, among other things, that the school was located in a private house and that the ethnic composition of the school was African American.
Abdur-Rahim has been unfairly targeted and stigmatized by the NYPD’s surveillance of AHA, where she is currently employed, and AMA, where she was last employed, as part of the Department’s program targeting Muslim organizations. She reasonably fears that her future employment prospects are diminished by working at two schools under surveillance by law enforcement. Moreover, the Newark report’s photograph of AMA is also Abdur-Rahim’s home, where she has lived since 1993 with her husband and, at various times, her children and grandchildren. The fact that a photograph of h er home appears on the internet in connection with the NYPD’s surveillance p rogram that the City of New York has since publicly exclaimed is necessary for public safety, has decreased the value of the home and diminished the prospects for sale of the home.
I’m betting that having her home and places of work surveilled by the cops is tough on Abdur-Rahim’s family, far tougher than it is for Clapper’s son to internalize complaints by the citizens he serves about the demonstrable obfuscation by his father.
There is no evidence that the NSA programs defended by Clapper ever specifically targeted Abdur-Rahim, though in this era of information sharing it is conceivable that NYPD identified potential targets (especially mosques) using data obtained indirectly from NSA.
But the entire system Clapper defends — in which communication ties between individuals serve, by themselves, as cause for further investigation — foments a logic that questions the integrity of great many members of the Muslim community. They get swept up in a dragnet (or exposed to infiltrators selected in part by using the dragnet) that targets them not because of what they said publicly in front of television cameras, which is why Clapper’s integrity is under question, but simply because they are 2 or 3 degrees away from someone subjected to a virtual stop-and-frisk.
Imagine how the sons and daughters of the real live teachers targeted by Clapper’s dragnet must internalize the presumption of a lack of integrity or even worse? Imagine how much worse it must be when the suspicion comes not from actual actions taken, lies told, but from ties to a community?
Clapper’s plea for his own reputation here is ill-placed. It actually convinces me we’re relying on the wrong evidence for questioning his integrity.
Because his actions, particularly over the past 4 years, involved questioning the integrity of many people based on far, far less evidence than is now being wielded against him. But when he and his employees at the National Counterterrorism Center question someone’s integrity, in secret, with little recourse for appeal, there may be consequences, like losing the ability to fly, or receiving extra scrutiny when they do try to fly.
And he still doesn’t get the problem with that. He still doesn’t understand why his “so-called” domestic surveillance –and the foreign surveillance that also sucks up Americans — is so much worse than being held to account for lies you tell Congress.
I’m going to return to Glenn Greenwald’s latest showing details of how the NSA treated WikiLeaks and, to a lesser degree, Anonymous (as well as Alexa O’Brien’s update on the investigation into WikiLeaks) later.
If GCHQ does this kind of tracking, how did Five Eyes miss the Tsarnaev brothers?
But for now I want to look at one slide covering GCHQ’s AntiCrisis monitoring approach (see slide 34), which in this case is focused on WikiLeaks. It shows how GCHQ has the ability — and had it in 2012 — to monitor particular websites. It shows GCHQ can monitor the visitors of a particular website, where they’re coming from, what kind of browsers they use. None of that is, in the least surprising. But given those capabilities, it would be shocking if GCHQ weren’t doing similar monitoring of AQAP’s online magazine Inspire, with the added benefit that certain text strings in each Inspire magazine would make it very easy to track copies of it as it was downloaded, even domestically via upstream collection. And for the UK, this isn’t even controversial; even possessing Inspire in the UK can get you imprisoned.
Given that that’s the case, why didn’t GCHQ and NSA find the Tsarnaev brothers who — the FBI has claimed but provided no proof — learned to make a bomb from the Inspire release that GCHQ or NSA hacked? Why isn’t NSA reviewing why it didn’t find the brothers based on cross-referencing likely NSA tracking of Inspire with its FBI reporting on Tamerlan Tsarnaev?
I used to not believe NSA should have found the Tsarneavs. But now that I’ve seen all the nifty tools we’ve learned NSA and, especially, GCHQ have, they really do owe us an explanation for why they didn’t find the Tsarnaev brothers, one of whom was already in an FBI database, and who was allegedly learning to make a pressure cooker bomb from a document that surely gets tracked by the NSA and its partners.
Speaking of NSA failures…
Which brings me back to James Clapper’s interview with Eli Lake.
Clapper said the problems facing the U.S. intelligence community over its collection of phone records could have been avoided. “I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had,” Clapper said.
“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints
Now, I’ll have to review the latest declarations in Jewel, but I think Clapper’s statement — that the genesis of today’s phone dragnet dates to 9/11 – goes slightly beyond what has been admitted, because it ties today’s phone dragnet program back to the PSP phone dragnet program. Ron Wyden has tried to make the tie between the illegal program and the current one clear for months. Clapper has now inched closer to doing so.
But I also want to take issue with Clapper’s claim that if NSA had presented a “gap” to Members of Congress and the public after 9/11 we would have loved the dragnet.
Had we known of the errors and territorialism that permitted 9/11, would we have agreed to any of this?
I do so, in part, because the claim there was a “gap” is erroneous and has been proven to be erroneous over and over. Moreover, that myth dates not to the days after 9/11, but to misrepresentations about the content of the 9/11 Commission report 3 years later. Note, too, that (as has happened with Inspector Generals reviews of the Boston Marathon attack) the Commission got almost no visibility into what NSA had against al Qaeda.
More importantly, had NSA gone to the public with claims about gaps it did and didn’t have before 9/11, we would likely have talked not about providing NSA more authority to collect dragnets, but instead, about the responsibility of those who sat on intelligence that might have prevented 9/11.
As Thomas Drake and the other NSA whistleblowers have made clear, the NSA had not shared intelligence reports that might have helped prevent 9/11.
I found the pre- and post-9/11 intelligence from NSA monitoring of some of the hijackers as they planned the attacks of 9/11 had not been shared outside NSA. Continue reading
Office of Director of National Intelligence General Counsel Robert Litt, 45 days ago:
Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate.
When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified.
This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure.
Director of National Intelligence James Clapper, today:
But Clapper told The Daily Beast that he simply misunderstood Wyden’s question. At the time of the hearing last March, Congress had just finished consideration of a bill to renew the Foreign Intelligence Surveillance Act (FISA). Section 702 of that legislation gives the National Security Agency the authority to collect the electronic communications of non-U.S. persons. In his question, Wyden asked initially if the United States had collected “dossiers” on American citizens and referred to an answer to this question by then NSA director, Keith Alexander.
“I was not even thinking of what he was asking about, which is of course we now all know as section 215 of the Patriot Act governing the acquisition and storage of telephony business records metadata,” Clapper said. “Wasn’t even thinking of that.” The director of national intelligence said he thought Wyden’s question was actually about section 702 of FISA.
“The allegation about my lying and committing perjury I think are disproven by my labored amplification when I said, ‘if there is, it’s inadvertent collection,’ meaning when we’re collecting overseas under section 702, and if we inadvertently collect which we may not know at the time, U.S. persons data, that’s what I meant by inadvertent. That comment would make absolutely no sense whatsoever in the context of section 215.”
At the time of the Mitchell interview, the U.S. government was still in the process of declassifying elements of the FISA 702 program. “There is only one person on the planet who actually knows what I was thinking,” Clapper said of his testimony from last March. “Not the media, and not certain members of Congress, only I know what I was thinking.”
If only one person knows what he was thinking, then how was Robert Litt in any position to tell us Clapper was “surprised”?
And has Clapper decided he wasn’t “surprised” (perhaps because he had been briefed, not to mention had received months and months of letters, about the question), but instead simply “misunderstood” the intent of a question he had received months of letters about?
As part of my new focus on leaked claims that the NSA can’t collect call call data because of problems stripping out cell location data, I want to look at the two exchanges Ron Wyden and James Clapper have had about cell location data.
First, at the Global Threats Hearing 2 years ago just after the US v. Jones decision ruled GPS tracking a search (watching Ron Wyden discomfit Clapper at Threat Hearings used to be my exclusive beat, you know), they had this exchange.
Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.
Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]
We now have proof (as if Wyden’s hints weren’t enough of a tell, given his track record) that NSA was collecting cell location at the time of Wyden’s question. While the exchange took place after (according to NSA’s public claims) NSA’s domestic experiments with cell data under Section 215 ended, it suggests the actual NSA collection took place outside of Section 215.
As it happens, NSA’s own slide shows that on the day Wyden asked the question — January 31, 2012 — it collected around 4 billion cell location records (it was a slow day that day — NSA had been collecting closer to 5 billion records a day in 2012). That collection presumably would have been conducted under EO 12333.
Given that we know NSA collected around 4 billion cell location records that day, I’m particularly struck by Clapper’s emphasis on two things: First his suggestion that the legal analysis might be different for an intelligence use than for a law enforcement use. Given his claim the IC abided by the Fourth Amendment, I assume he imagines they have a Special Need to suck up all this cell location data that makes such searches “reasonable.”
Also note his reference to “foreign or domestic.” I’m guessing the IC was also busy arguing that, in spite of the US person cell locations they were ingesting, because they were doing so in a foreign location, it didn’t violate the Fourth Amendment.
With all that in mind, consider Wyden’s question to Keith Alexander on September 26, just before Alexander admitted to the past Section 215 experiments as some kind of limited hangout. Continue reading
I joked yesterday that James Clapper did no more than cut and paste to accomplish President Obama’s order of providing a list of acceptable bulk collection. But I’d like to note something about the list of permissible uses of bulk collection.
For months, I have been noting hints that the use of Section 702 — which is one of several kinds of domestic bulk collection — is limited by the number of certifications approved by FISC, which might be limited by FISC’s assessment of whether such certifications establish a certain level of “special need.”
In 2011, it seems clear from John Bates’ opinion on the government’s Section 702 applications, there were 3 certifications.
If there are just 3 certifications, then it seems clear they cover counterterrorism, counterproliferation, and cybersecurity (which is consistent with both ODNI’s public descriptions of Section 702 and the Presidential Review Group’s limits on it), 3 of 6 of the permitted uses of bulk collection.
Furthermore, there’s some history (you’ll have to take my word for this for now, but the evidence derives in part from reports on the use of National Security Letters) of lumping in Counterintelligence and Cybersecurity, because the most useful CI application of bulk collection would target technical exploits used for spying. So if that happens with 702 collection, then 4 of the 6 permissible applications would be covered by existing known certifications.
Threats against Armed Forces would, for the most part, be overseas, suggesting the bulk collection on it would be too. (Though it appears Bush’s illegal program used the excuse of force protection to spy on Iraqi-related targets, potentially even in the US, until the hospital confrontation stopped it.)
Which leaves just transnational crime threats — against which President Obama rolled out a parallel sanctions regime to terrorism in 2011 (though there had long been a regime against drug traffickers) — as the sole bulk collection that might apply in the US that doesn’t have certifications we know about.
Given that at least drug cartels have a far more viable — and deathly — operation in the United States than al Qaeda, I can’t think of any reason why the Administration wouldn’t have applied for a certification targeting TCOs, too (one of Treasury’s designated TCO targets — Russian and East European mobs — would have some overlap with the cyber function, and one — Yakuza — just doesn’t seem like a big threat to the US at all).
And last year’s Semiannual Compliance Assessment may support the argument that there are more than 3 certificates. In its description of the review process for 702 compliance, the report lays out review dates by certifications. Here’s the NSA review schedule:
This seems to show 4 lines of certifications, one each in August and December, but two in October. Perhaps they re-review one of the certifications (counterterrorism, most likely). But if not, it would seem to suggest there’s now a 4th certification.
Here’s the FBI review schedule (which apparently requires a lot more manual review).
Given that this requires manual review, I wouldn’t be surprised if they repeated the counterterrorism certifications review (and we don’t know whether all the NSA certifications would be used by FBI). But the redactions would at least allow for the possibility that there is a 4th certification, in addition to the 3 we know about.
Perhaps Obama rolled out TCOs as a 4th certification as he rolled out his new Treasury initiative on it (which would be after the applications laid out by Bates).
Of course, we don’t know. But I think two things are safe to say. First, the use of 702 is tied to certifications by topic. And the public statement about permissible use of bulk collection, it would seem to envision the possibility of a 4th certification covering TCOs, and with it, drug cartels.