The 2009 Draft NSA IG Report Makes No Mention of One Illegal Practice

The 2009 Draft NSA IG Report released by the Guardian last week — and related reporting from Barton Gellman — seem to clarify and confirm what I’ve long maintained (12/19/057/29/07; 7/30/07): that one part of the illegal wiretap program that Jack Goldsmith and Jim Comey found “illegal” in 2004 was data-mining of Americans.

Eight days later on 19 March 2004, the President rescinded the authority to collect bulk Internet metadata and gave NSA one week to stop collection and block access to previously collected bulk Internet metadata. NSA did so on 26 March 2004. To close the resulting collection gap, DoJ and NSA immediately began efforts to recreate this authority in what became the PR/TT order.

Mind you, this bulk collection resumed after Colleen Kollar-Kotelly signed an order permitting NSA to collect the same data under a Pen Register/Trap & Trace order on July 14, 2004.

The FISC signed the first PR/TT order on 14 July 2004. ALthough NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk Internet metadata that it had under the PSP, except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data.

Indeed, we know the program was expanded again in 2007, to get 2 degrees of separation deep into US person Internet data. The Obama Administration claims it ended this in 2011, though there are also indications it simply got moved under a new shell.

Mystery solved, Scoob!

Not so fast.

It appears the bulk Internet metadata collection and mining is just one of two practices that Goldsmith and Comey forced Bush to at least temporarily halt in 2004. But the second one is not mentioned at all in the NSA IG Report.

I first noted that Bush made two modifications to the program in this post, where I noted that 6 pages (11-17) of Jack Goldsmith’s May 6, 2004 OLC opinion on the program described plural modifications made in March and one other month in 2004 (I correctly surmised that they had actually shifted parts of the program under parts of the PATRIOT Act, and that they had narrowed the scope somewhat, though over-optimistically didn’t realize that still included warrantless collection of known domestic content).

But there’s actually a far better authority than Goldsmith’s heavily redacted opinion that confirms Bush made two modifications to the program in this period.

Dick Cheney.

When his office disclosed to Patrick Leahy in 2007 what documents it had regarding authorizations for the illegal wiretap program, it listed two modifications to the program: the one on March 19 described in detail in the NSA IG Report, plus one on April 2.

[Cheney Counsel Shannen] Coffin’s letter indicates that Bush signed memos amending the program on March 19 and April 2 of that year.

But there’s no hint of a second modification in the NSA IG Report.

That could mean several things. It could mean the April 2 modification didn’t involve the NSA at all (and so might appear in a one of the other Agency IG Reports at the time — say, DNI — or might have been completed by an Agency, like some other part of DOD, that didn’t complete an IG Report). It could mean that part of the program was eliminated entirely on April 2, 2004. Or it could mean that in an effort to downplay illegality of the program, the IG simply didn’t want to talk about the worst prior practice eliminated in the wake of the hospital confrontation.

Goldsmith’s opinion does seem to indicate, however, that the modification pertained to an issue similar to the bulk metadata collection. He introduces that section, describing both modifications, by saying “it is necessary to understand some background concerning how the NSA accomplishes the collection activity authorized under” the program.

That may still pertain to the kind of data mining they were doing with the Internet metadata. After all, the fix of moving Internet metadata collection under the PR/TT order only eliminated the legal problem that the telecoms were basically permitting the government to steal Microsoft and Yahoo Internet content from their equipment. There still may have been a legal problem with the kind of data mining they were doing (perhaps arising out of Congress’ efforts in that year’s NDAA to prohibit funding for Total Information Awareness).

Whatever it is, one thing is clear. Even with the release of the unredacted Draft NSA IG Report, we still aren’t seeing all the details on what made the program so legally problematic.

Maybe it’s something the Senate Judiciary Committee might ask Jim Comey during his FBI Director confirmation hearing?

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

11 replies
  1. Arbusto says:

    Wonder if Bushco and Obama LLC use NSA as a profit center. Hell, if they’re stealing taking data from Google, Yahoo, Microsoft et al on a world wide scale, they could just as well sell it as surplus inventory to the highest bidder.

  2. What Constitution says:

    Here’s hoping some American Senator asks Mr. Comey about this “one or two” question during his confirmation hearings. Or would that be, wait for it, a “state secret”? I know, here’s a solution for that: get David Gregory to find out — we can count on his “sources” to clear this up, for sure.

  3. harpie says:

    Even with the release of the unredacted Draft NSA IG Report, we still aren’t seeing all the details on what made the program so legally problematic.

    Sheesh, Marcy. No matter what they do, it’s just never enough for you! ;-)

  4. P J Evans says:

    @What Constitution:
    I suspect the ‘state secrets’ are what they’ll use to cow senators into not asking embarrassing questions of potential administration officials. After all, letting them ask serious questions might give them ideas about how to do real oversight.

  5. Nell says:

    Blumenthal looks like the only possibility for any questions with an edge, since Franken appears to be okay with all the spying. Long since given up on more senior members (Durbin wants to decide who’s a journalist, Whitehouse has been mum on all security-related stuff for a while). Assuming Coons and Hirono are fully tamed.

    Comey’s role in the horrific abuse of Jose Padilla puts him squarely in the grand traditions of the FBI. He’s also got blood on his hands as part of coverup of the House of Death murders in Juarez. http://narcosphere.narconews.com/notebook/bill-conroy/2013/06/fbi-director-candidate-comey-complicit-dark-chapter-us-history

    Gaah. Only 3:00, but I need a drink.

  6. Greg Bean (@GregLBean) says:

    OT: @Rayne / @jawbone, further to our discussion on the economic advantage available through this surveillance (see comments on Rayne’s earlier piece on what is missing from the NSA slides), it seems the European’s are a bit pissed that economic advantage is exactly what is driving this.

    Chasing terrorists is only a cover.

    http://rt.com/news/eu-demand-clarification-us-spying-440/

    As I’ve said before, if one individual in a Survivor challenge could listen to everyone else’s conversations, how could that individual lose. That ability, to listen in on all economic competitive negotiator’s conversations is were the NSA spying really pays dividends. And the Europeans know it.

  7. Snoopdido says:

    It sounds strange, but quite often the codenames for secret programs are designed to shed light on what exactly those programs do.

    For example, a prism “can be used to break light up into its constituent spectral colors (the colors of the rainbow).” – http://en.wikipedia.org/wiki/Prism_(optics)

    In the case of the top secret NSA Prism program, as one can see from the latest slides posted by the Washington Post (the 2nd new one in particular) – http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/?hpid=z1, Prism breaks apart the communications acquired by the NSA into their different components of voice content, voice metadata, internet content including video, file transfer, instant messaging, website access, email, etc. and internet metadata.

    I don’t know if the NSA organizationally has a sense of humor or not, but one of their secret programs (also shown on the new slide 2) that apparently captures real-time internet traffic on major telephone company internet hubs is called TRAFFICTHIEF.

    Yes, stealing internet traffic as it flows through its pipes. What could be a more appropriate name than that?

  8. TomVet says:

    @Snoopdido:

    […]codenames for secret programs are designed to shed light on what exactly those programs do.

    Indeed. Someone commented on an article earlier this week (which I can’t locate just now, darn it) that EVILOLIVE is a palindrome, i.e. the same forward and back, implying two-way traffic. But the name itself is even more blatant. It is literally “live” both directions from the center hub!

    How many evil connotations does that conjure up?

  9. orionATL says:

    i asked you now, is this not insane AND politically incompetent AND potentially criminal behavior:

    http://www.guardian.co.uk/world/2013/jun/30/nsa-leaks-us-bugging-european-allies

    why do do we bug our “allies”?

    because the president and the nsa can!

    and

    because because the president and the nsa assumed there would never be a citizen with the guts and the intellect and the political concerns

    of edward snowden.

    obama is emotion-surfing abroad, but he has got to come home some day.

    and when he does his pleasant, cool-dude, studiedly-evasive style of talking down and lying to us citizens should be up for challenge.

    but who will challenge?

  10. Greg Bean (@GregLBean) says:

    @orionATL: Two things, there is an old phrase, “the morals of a dog on a putting green”, which is to say, so ignorant of morality that shitting on a putting green is not something one would feel any remorse for (dogs don’t recognize their breach), and 2, this is economic, all the surveillance is now being recognized as financially motivated.

    In short, Obama is happy to corrupt the playing field and morally bankrupt enough to think it is unimportant, or maybe even his privilege, to do so.

    And he doesn’t think this moral corruption is the cause of the US being in decline. But it is.

    http://www.youtube.com/watch?v=0cXF0BavUhg

    The World will not follow a bankrupt lead.

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