James Clapper versus DOJ (and NSA) on Upstream Collection Transparency
Last week, David Ignatius wrote a column declaring the Director of National Intelligence position under James Clapper “Mission Accomplished!” It’s mostly a beat sweetener, but I’m intrigued by his claim that James Clapper forced the NSA to declassify more of the 2011 John Bates decision than they wanted to.
But there are welcome signs that this jury-rigged structure may finally be starting to work as the DNI responds to budget pressures and the scandals surrounding National Security Agency’s surveillance programs. Clapper has recently taken steps that forced the National Security Agency (NSA) to accept greater transparency and stopped the military agencies from wasteful spending on duplicative satellite imagery.
One example is Clapper’s pressure on the NSA to disclose more about its surveillance programs. The NSA initially wanted to “redact” (a fancy word for censor) far more of a 2011 ruling by the Foreign Intelligence Surveillance Court that the agency had engaged in illegally broad surveillance. Clapper thought NSA lawyers were suppressing too much, so he instructed his general counsel, Robert Litt, to go back through the document and make public more information. Clapper ignored NSA and Justice Department protests, including to the White House, and backed Litt’s less-redacted version.
That 2011 opinion is one of the most important disclosures so far (and the more I think about it the more I’m convinced it was a dangerous rubber stamp). So I’m grateful as much of it was released as it was.
But I’m intrigued by what this account says of upstream collection (and the searching on US person data collected under FISA Amendments Act) generally.
As the screen cap above shows, even while the opinion made it clear what “upstream” collection is (and other documents released, Dianne Feinstein’s public comments, and the footnote below have made it clear the telecoms conduct the collection), it kept the actual language describing the process redacted.
Assuming Ignatius description that Clapper pushed for this level of disclosure is correct, consider Clapper’s gimmicky efforts to deny or refuse to discuss other upstream collection under EO 12333. That would say Clapper pushed to make more of this FAA upstream collection public, but has gone to some effort to deny the other direct collection under EO 12333.
Meanwhile, remember the way David Kris’ paper, which was reviewed by DOJ, managed to raise Internet metadata and EO 12333, but largely indirectly.
They’re awfully squirrely about the upstream collection, perhaps because they are increasingly targeting US persons using EO 12333. But it’s worth following.
I’m aghast that he would see the slow, angry, demanding that the rest of the world be banned from reading things they don’t like, response to these scandals as a sign that the DNI structure is “working.” If anything the existence of the scandals and the response to them is a sign that the existing structure of vesting unchecked power in the hands of a few persons is the problem.
This only makes sense if by “working” he means that it is working in the same way that the FISA court’s decision to bring in and “legalize” patently illegal activity without generating any actual reforms is “working” because it lends a patina of credibility to the process and makes people like him sleep better at night.
Either way that premise doesn’t make me feel comfortable about his subsequent reasoning.
Be vewwy vewwy quiet . . . EW’s hunting squiwwels.
But in Clapper’s defense, aren’t they awfully squirrely about everything they do in his office? Not that this isn’t worth following, but the four major operating principles there seem to be:
(1) Everything we do is secret.
(2) Everything we do is necessary to national security.
(3) Everything we do is legal.
(4) Everyone who questions (1), (2), or (3) is a threat.
Taken together, this is a recipe for lots of squirrely behavior.
OT: I’ve got some trash to dispose of, and no trash truck in sight. Is today some kind of odd holiday with irregular trash service?
@Peterr: I agree Peterr but, given their apparent willingness to lie to people like Jim Sensenbrenner and their current focus on internal spying I think you could collapse 4 to:
Alan Grayson has some interesting things to say about ‘openness’ and ‘transparency’, too:
When Intelligence Committee members announce publicly that they are being lied to, what hope is there for the rest of us ?