The NSA May Not “Target” Lawyers, But It Does “Spy” on Them

Congratulations to Ben Wittes who, with this post, demonstrates how the NSA can “spy” on Americans without “targeting” them.

His piece consists of several steps. First, Wittes goes to great effort to show that Laura Poitras and James Risen have not shown that the American law firm representing the Indonesian government, Mayer Brown, was “targeted” (though he seems to think that means they weren’t spied on).

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm. [my emphasis]

This is a flimsy use of NSA’s own euphemism, “targeting,” given that NYT never uses the word in the context of the law firm (they do use it to discuss the law and make it clear ASD discovered they were spying on an American who was working for the USG). The verbs they use include “entangled,” “caught up,” “monitored,” “ensnared,” and “compromised.” All verbs that describe what happens when someone talks to a targeted entity.

From there, Wittes takes a hypothetical quote offered by the NSA spokesperson, explaining that NSA sometimes does ask Five Eyes partners to take special precautions, to suggest the NSA did ask Australia’s ASD to protect the US lawyers involved.

An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.

“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.

But doesn’t quote the bit that makes it clear NSA would not — and was not — commenting on this case.

The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.

Then Wittes shows the ambiguity about what happened when the ASD told the US an American law firm had gotten caught in its surveillance, quoting from the text.

Here’s the direct quote from the document in question.

(TS//SI//REL) SUSLOC Facilitates Sensitive DSD Reporting on Trade Talks: According to SIGINT information obtained by DSD, the Indonesian Government has employed a US law firm to represent its interests in trade talks with the US. On DSD’s behalf, SUSLOC sought NSA OGC guidance regarding continued reporting on the Indonesian government communications, taking into account that information covered by attorney-client privilege may be included. OGC provided clear guidance and DSD has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.

Now, I agree this passage is not crystal clear (though it is less ambiguous than the text itself). What is clear is DSD (the name of which has subsequently been changed to ASD) continued spying on the Indonesian government — and sharing that spying with US “customers” — after SUSLOC consulted (on its behalf) with NSA’s lawyers.

Wittes then points to how Section 702 minimization procedures (he admits the minimization under EO 12333 in this case would be weaker) would “protect” these conversations — and after almost 300 words, admits that even the more stringent Section 702 procedures offer no specific protections for attorneys in a civil matter.

NSA cannot target anyone for Section 702 collection—not even foreign persons overseas—without a valid foreign intelligence purpose. Section 702 categorically forbids intentionally targeting any U.S. person—or any other person believed to be inside the U.S. And it requires NSA to follow procedures to minimize any information acquired in the course of targeting non-U.S. persons reasonably believed to be located outside the United States. So it would be legal to target Indonesian officials engaged in trade talks with the United States, but NSA would have to discard any communications they might have with US persons—lawyers or not—to the extent there was no foreign intelligence value in those communications. And NSA would have to discard and mask the US persons’ identities except to the extent that those identities themselves had foreign intelligence value.

According to section 4 of the declassified 2011 guidelines governing minimization, moreover, additional protections kick in when it becomes apparent that acquired communications are taking place between any person known to be under criminal indictment in the United States and an attorney representing that individual in the matter. Monitoring of that communication must halt, the communication must be segregated from other acquired information and special precautions must be taken through the DOJ’s National Security Division to ensure the communications play no part in any criminal prosecution. As an added precaution, the NSA Office of General Counsel is also required to review all proposed disseminations of U.S. person attorney-client privileged communications prior to dissemination.

The 2011 minimization guidelines aren’t airtight; critics have pointed out that calls that fall under attorney-client privilege need not be minimized if the target has not been criminally charged under U.S. law. And they thus would not protect attorney-client communications in a civil matter like a trade negotiation at all.

Which is a long-winded way of saying that even if the NSA followed more stringent Section 702 minimization procedures, even if it were conducting the collection directly rather than through a Five Eyes agreement, even if it were collecting data in the US, it could continue to collect these conversations and disseminate the content of them so long as it didn’t disseminate the identities of the US persons involved.

Of course, that the NYT was able, with very little evidence, to identify with a high degree of certainty the firm and lawyers involved shows what that’s worth.

So upon consultation, the ASD would have been told that even US rules on domestic spying would not prevent the NSA from spying on Mayer Brown off targeting directed at the Indonesian government. And all that’s all ignoring that US persons get less protection under EO 12333.

So however you want to fetishize the word “target,” what seems clear from the story is that a Five Eyes partner shared information with US customers, almost certainly including what should be the content of privileged attorney-client communications, on a matter in which the US was the legal adversary. That NSA did not push the button does not alter the clear implication that the US was collecting, via its partner relationships, legally protected information on a party they were in a legal dispute with.

But this is not news!!!!

After all — in a case that has become central to the current legal understanding of FISA — the NSA not only spied on Wendell Belew’s conversations when he was representing the Muslim charity al-Haramain (conversations he engaged in from the US), but they sent him a log of the conversations they spied on! There, like here, you could say the US didn’t “target” the lawyer (they almost certainly targeted his client, Soliman al-Buthi), but the effect is still the same, listening in on privileged conversations in which the US is the adversary.

And if you think all that ended with the Bush administration, consider the case of Robert Gottlieb, all of whose pre-indictment calls with his client Adis Medunjanin (Najibullah Zazi’s co-conspirator), were recorded.

The first time Adis Medunjanin tried to call Robert C. Gottlieb in mid-2009, Gottlieb was out of the office. Medunjanin was agitated. He had to speak to an attorney. Gottlieb’s assistant told him Gottlieb would be back soon. When Medunjanin spoke to the lawyer a little later, he was told he might need legal representation. He thought he might be under investigation.

Over the next six months and in forty-two phone calls, Medunjanin sought legal advice from Gottlieb. When he was arrested in January 2010 on charges that he tried to bomb the New York subway, it was Gottlieb who defended him, receiving security clearance to review government documents pertinent to the case in the process.

Gottlieb was preparing Medunjanin’s defense when a federal officer in charge of information distribution e-mailed him that there was new classified information he needed to review at the US Eastern District Court in Brooklyn. “I went over to the Brooklyn Federal courthouse, went up to the secured room, gained entry with the secret security codes, opened the file cabinet that is also secure and in the second drawer was a CD,” Gottlieb told me. On that CD were recordings of every single one of his forty-two phone calls with Medunjanin before he was taken into custody and indicted on January 7, 2010.

In this case, we know the government had a FISA warrant for Medunjanin (Enemies Within even tells us the FISA warrants were filed in NY). So we know that Gottlieb was not “targeted.” But that didn’t stop the government from collecting and listening to 42 privileged phone conversations between two American citizens taking place entirely within the US.

And all of these — the presumed case of Mayer Brown, the proven case of al-Haramain, and the proven case of Medunjanin — would have adhered to the Section 702 minimization procedures NSA apologists point to as some great protection for legally privileged conversations (though the surveillance of all of them took place under different authorities).

That should not lead anyone to believe — much less claim — that this means the US government doesn’t spy on lawyers. On the contrary, it should demonstrate that no matter how many times someone wields the words “target” and “minimization procedures,” it still permits the NSA to spy on privileged conversations between lawyers and their clients, with the only marginally meaningful protections offered to indicted defendants. Indeed, it should demonstrate how the NSA’s special carve out for attorney client conversations doesn’t amount to anything for the great majority of legally privileged conversations.

The entire point of spying — whether directly or via a partner, whether in the US or overseas — is getting the substance of communications. And NSA’s minimization procedures allows them to do that in the case of a great deal of attorney-client conversations. We should not be surprised they’ve used that permission on multiple occasions.

Update: “So upon consultation” sentenced added for clarity.

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.

18 replies
  1. Anonsters says:

    This just in: Ben Wittes has lost all credibility as anything other than a Surveillance State apologist.

  2. Anonsters says:

    I should add that, unlike other commenters here, I tend to try to give people the benefit of the doubt. But when it becomes clear, over time, that someone has stopped seriously trying to grapple with issues, and has decided (perhaps only implicitly) to defend a single position while simultaneously claiming to be only and always neutral, we should call it for what it is. And it’s time to stop taking Ben Wittes seriously.

  3. Greg Bean (@GregLBean) says:

    Australia is already in very deep shit with Indonesia and this won’t help. In fact if Australian diplomats aren’t expelled I’d be amazed.

    In Nov 2013 it was revealed the Australia had extensive spy operations running to monitor the Indonesian President and many others: http://www.abc.net.au/news/2013-11-18/australia-spied-on-indonesian-president-leaked-documents-reveal/5098860

    Recently, it has been revealed that Australia, via the Navy (military boats), in its brutal treatment of refugees has been towing refugee boats back into Indonesian waters, thus infringing Indonesian sovereignty. http://www.theguardian.com/world/2014/feb/14/australian-navy-incursion-into-indonesian-waters-intentional

    And now this!

    The recently elected Australian PM, Tony Abbott, Rupert Murdoch’s puppet, is a slimeball of the highest order, as only the Jesuits can produce; think John (The Drone Czar) Brennan.

    It’s only going to get worse as the Snowden revelations show how grotesque Australian Government behavior has been in the past; see The Act of Killing for a historical nadir.

  4. Snoopdido says:

    Too many apologists and not enough accomplices!

    Apologists prefer to obscure the issues with their legerdemain about “targeting” when the real important facts of the matter are about the “collection”.

    A dragnet doesn’t give a wit (or a witte) about targets. It’s all about “collection”.

  5. emptywheel says:

    @orionATL: Technically women cna’t be Jesuits in any case, so a third miracle along with the second.

    No. She led retreats for the Jesuits for a decade.

  6. Greg Bean (@GregLBean) says:

    @emptywheel: “Technically women cna’t be Jesuits”

    From some of my past comments one could conclude I have a problem with religions. I don’t actually.

    I have a problem with religions that demand exceptions to a Global Charter of Human Rights.

    Can anyone identify a single religion that would sign and adhere to the UN Charter of Human Rights? Like equal rights for women? Like the ability to join or leave a religion as you choose without being ostracized?

    And the Jesuits are no exception, and in my estimation are kind of the extremists (The Taliban) of Christianity. Thus the atrocities.

  7. Frank33 says:

    Spies here, Spies there, Spies everywhere, Spies in Tampa, spying on Americans. Does the US Government do anything else besides wars and suppressing dissent? Shhhh…keep it secret.

    Stroncheck said he knew from others in his office that intelligence on U.S. citizens was collected routinely at the Tampa command. SOCom has denied that allegation, noting the Defense Intelligence Agency and SOCom inspector generals had investigated and found no illegal activity.

    At the time, Stroncheck said, he was on the DIA’s payroll working at what was a SOCom operation.

    “I understand what he alleges, but just because someone alleges something doesn’t make it true,” SOCom spokesman Ken McGraw said last year. A “(SOCom) inquiry did determine some people needed to be retrained in the procedures associated with collecting information on U.S. persons. . . . Some people were not as familiar as they should be with the procedures associated with collecting information on U.S. persons and needed additional training or retraining.”

    Stroncheck said he resigned under pressure from the DIA in October 2009 after one year on the job, fearing his supervisor was building a case to fire him in retaliation.

  8. Greg Bean (@GregLBean) says:

    What the hell has religion got to do with the NSA?

    The primary objection we all have to the NSA (as a generic term covering all such agencies) is the breach of human rights it seems to feel is its prerogative.

    Religions have exactly the same view of human rights; they’re secondary to religious dictates and will be breached as we choose.

    And now I get to use my favorite phrase, we’re all distracted by symptoms, spying in this case, rather than looking at the root cause, a belief that it is ok to breach human rights.

  9. spongebrain says:

    So it’s a matter of what the words, “target” and “spy,” are “derived from.”

    “Which is a long-winded way of saying that even if the NSA followed more stringent Section 702 minimization procedures, even if it were conducting the collection directly rather than through a Five Eyes agreement, even if it were collecting data in the US, it could continue to collect these conversations and disseminate the content of them so long as it didn’t disseminate the identities of the US persons involved.”

    Also known as “plausibly deniable” in parallel universes. Something tells me Laura Poitras knows the implications of this far better than most…so far.

    @Frank33:

    Quoting Tampa Bay Times quoting SOCom: “Some people were not as familiar as they should be with the procedures associated with collecting information on U.S. persons and needed additional training or retraining.”

    No kidding.

  10. emptywheel says:

    @Anonsters: She did not. She didn’t “become” a Jesuit until I was long past teaching.

    My father, incidentally was (actually really was, though turned down ordination twice) an Augustinian. More likely Augustinian spirituality influenced my upbringing than Jesuit spirituality.

  11. GKJames says:

    It’s amusing how the word game works: The State is defended using the narrowest hyper-technical legal and linguistic construction imaginable, while “ignor[ing] the substance of the communication.” It’s that same State which construes garden-variety basics like “operational” and “imminent” and “threat” with stupendous elasticity. Intellectual wankery on both sides of the coin, of course. All possible because the State and the buffoons who represent it would never dare test their version on 12 real people in a real courtroom in a real judicial proceeding. (Amazingly, even with that stecked deck, they still feel compelled to mislead the FISC, water-carriers for the apparatus.)

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