Tag: NSA

The Defense of NSA Spying that Wasn’t

In an interview with CNN yesterday, outgoing FBI director Robert Mueller offered up words one could characterize as defending mass surveillance of all Americans’ phone calling. Indeed his interview has been portrayed as a defense of such spying, with outlets like NRO’s “The Corner” reporting “Outgoing FBI Chief: ‘Good Chance’ NSA Would Have Prevented ‘Part’ of 9/11.” But Director Mueller spoke much more equivocally than that.

Here’s what he actually said.

CNN: If we had the kind of intelligence that we were collecting through the NSA before September 11th, the kind of intelligence collection that we have now, do you think 9/11 would have been prevented?

MUELLER: I think there’s a good chance we would have prevented at least a part of 9/11. In other words, there were four planes. There were almost 20 — 19 persons involved. I think we would have had a much better chance of identifying those individuals who were contemplating that attack.

CNN: By this mass collection of information?

MUELLER: By the various programs that have been put in place since then. … It’s both the programs (under the Patriot Act) but also the ability to share the information that has made such dramatic change in our ability to identify and stop plots.

Mueller vaguely cited “various programs,” giving them a retroactive chance of preventing “a part of 9/11.” But even this defense of post-9/11 powers is insufficient.

In our 2006 paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” IBM scientist Jeff Jonas and I recounted the ease with which 9/11 attackers Khalid al-Mihdhar and Nawaf al-Hazmi could have been found had government investigators pursued them with alacrity. The 9/11 Commission said with respect to al-Mihdhar, “No one was looking for him.” Had they been caught and their associations examined, the 9/11 plot probably could have been rolled up. Sluggish investigation was a permissive factor in the 9/11 attacks, producing tragic results that nobody foresaw.

That absence of foresight is a twin with retrospective assessments like Mueller’s, which fail to account for the fact that nobody knew ahead of 9/11 what devastation might occur. Immediately after the 9/11 attacks, everybody knew what such an attack could cause, and everybody began responding to the problem of terrorism.

Would Patriot Act programs have prevented at least a part of 9/11? Almost certainly not, given pre-9/11 perceptions that terrorism was at the low end of threats to safety and security. A dozen years since 9/11, terrorism is again at the low end of threats to safety and security because of multiplicitous efforts worldwide and among all segments of society. It is not Patriot Act programs and certainly not mass domestic surveillance that make us safe. Even Mueller didn’t defend NSA spying.

Nat Hentoff on the NSA and Privacy

Today’s Washington Post reports that the National Security Agency violated the rules on domestic surveillance thousands of time a year since Congress granted the agency broader surveillance powers in 2008. Note this revelation did not come to light because of forthright disclosure from the professionals that run the agency, the congressional oversight committees, or the FISA court. Rather, whistleblower Edward Snowden provided this information to the Post. The U.S. government has made it clear that it wants Snowden locked away in a prison cell incommunicado. 

Over at the Wall Street Journal, Peggy Noonan interviewed Cato senior fellow Nat Hentoff about the implications of the surveillance state. Here’s an excerpt:

A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications. That is the view of Nat Hentoff, the great journalist and civil libertarian. He is 88 now and on fire on the issue of privacy. “The media has awakened,” he told me. “Congress has awakened, to some extent.” Both are beginning to realize “that there are particular constitutional liberty rights that [Americans] have that distinguish them from all other people, and one of them is privacy”…

He wonders if Americans know who they are compared to what the Constitution says they are.

Mr. Hentoff’s second point: An entrenched surveillance state will change and distort the balance that allows free government to function successfully. Broad and intrusive surveillance will, definitively, put government in charge. But a republic only works, Mr. Hentoff notes, if public officials know that they—and the government itself—answer to the citizens. It doesn’t work, and is distorted, if the citizens must answer to the government. And that will happen more and more if the government knows—and you know—that the government has something, or some things, on you. “The bad thing is you no longer have the one thing we’re supposed to have as Americans living in a self-governing republic,” Mr. Hentoff said. “The people we elect are not your bosses, they are responsible to us.” They must answer to us. But if they increasingly control our privacy, “suddenly they’re in charge if they know what you’re thinking.”

This is a shift in the democratic dynamic. “If we don’t have free speech then what can we do if the people who govern us have no respect for us, may indeed make life difficult for us, and in fact belittle us?”

More thoughts from Nat Hentoff here.

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

Happy Gulf of Tonkin Anniversary (and Thanks, NSA, for Lying about It for 40 Years)!

So yesterday marked an unhappy anniversary: 49 years since Congress passed the Gulf of Tonkin Resolution authorizing the Vietnam War. (H/T Caleb Brown.)

LBJ compared the resolution to “grandma’s nightshirt” because it “covered everything.” Like the 2002 Iraq War Resolution, it was worded broadly enough to allow the president to make the final decision about war all by himself—and vaguely enough to allow those who voted for it to deny responsibility for the war they’d authorized. 

There’s a lesson there about how congressional fecklessness enables presidential warmaking. But what happened—or didn’t happen—in the Gulf of Tonkin in August 1964 is even more relevant to the current controversy over just how far we should trust the National Security Agency.

On August 2, 1964, the U.S.S. Maddox came under fire while gathering signals intelligence in Vietnamese territorial waters. But it was the alleged “second attack,” confirmed by the NSA, that LBJ seized upon to order retaliatory bombings and push the Gulf of Tonkin Resolution through Congress.

As we now know, the “second attack” never happened. Days after the attack, Johnson cracked, “Hell, those dumb, stupid sailors were just shooting at flying fish!”  A National Security Agency historian later concluded that “N.S.A. officers had deliberately falsified intercepted communications in the incident to make it look like the attack on Aug. 4, 1964, had occurred, although he said they acted not out of political motives but to cover up earlier errors.”

As Mark Ambinder and D.B. Grady recount in their new book Deep State: Inside the Government Secrecy Industry, ”the NSA covered up its role in mistakenly reporting that two U.S ships had been attacked,” and stuck to its original story for four decades, “a lie perpetuated by secrecy.” In 2005, Freedom of Information Act requests and pressure from the press finally forced the release of classified documents on the Tonkin incident. The NSA resisted almost until the end, fearing, as one intelligence official told the New York Times, their release “might prompt uncomfortable comparisons with the flawed intelligence used to justify the war in Iraq.”

NSA: Keeping Us Safe From…Dope Peddlers

The Justice Department says it is reviewing the Drug Enforcement Administration’s “Special Operations Division”—the subject of an explosive report published by Reuters on Monday. The SOD works to funnel information collected by American intelligence agencies to ordinary narcotics cops—then instructs them to “phony up investigations,” as one former judge quoted in the story put it, in order to conceal the true source of the information. In some instances, this apparently involves not only lying to defense attorneys, but to prosecutors and judges as well.

DEA is taking a predictable “nothing to see here” stance in its public responses to the story, but on its face this seems like a fairly brazen violation of the right to due process. As several legal experts quoted in the Reuters article point out, the accused in our criminal justice system cannot effectively defend themselves unless they know how evidence against them was obtained, and this program is clearly designed to deprive them of that knowledge. Moreover, at least some of the information channeled to police derives from FISA electronic surveillance, and 50 USC §1806 explicitly requires the government to notify persons whenever it intends to use information “derived from” such intercepts against them in any legal proceeding. Flouting that requirement is doubly troubling because, in light of the Supreme Court’s recent ruling in Amnesty v. Clapper, the only way for any court to review the constitutionality of intelligence programs is for a defendant to raise a challenge after being informed that they’ve been subject to surveillance.

One way they’re able to get away with this is by exploiting the fact that our justice system relies so heavily on plea bargains. Prosecutors stack up charges against defendants in hopes of effectively coercing them into waiving their constitutional right to a jury trial and accepting a plea deal, which even for the innocent may make more sense than risking a conviction that could lead to an enormously longer jail sentence. Conveniently, avoiding a trial also greatly reduces the risk that one of these “phonied up” investigations will be exposed.

Atlas Bugged II: Is There an NSA Mass Location Tracking Program?

Way back in 2011—when “Snowden” was just a quiescent indie band from Atlanta—I wrote two posts here at the Cato blog trying to suss out what the “secret law” of the Patriot Act that Sen. Ron Wyden (D-OR) and others were raising alarms about might involve: “Atlas Bugged” and “Stalking the Secret Patriot Act.” Based on what seemed like an enormous amount of circumstantial evidence—which I won’t try to summarize here—I speculated that the government was likely engaged in some kind of large scale program of location tracking, involving the use of the Patriot Act’s Section 215 to bulk collect cell phone location records for data mining purposes.

I remained reasonably confident in my guess until the disclosure of the Section 215 bulk call records program, which was soon followed by insistent public statements from NSA officials that they did not collect location records “under this program.” That ubiquitous qualifier certainly left some wiggle room, but naturally the government collects location information in some circustances for intelligence purposes—at the very least when it has a FISA warrant for full electronic surveillance of a specific target—and it seemed only natural that if the government was engaged in bulk location tracking and data mining, it would obtain that information in tandem with its bulk collection of call detail records. So, I concluded, I had probably guessed wrong: The secret Section 215 program did involve bulk collection of phone records—but not phone location records.

Then, last week, Wyden gave a barnburner of a speech on NSA surveillance at the Center for American Progress—one that makes me think I may have guessed correctly after all. Between his talk and the question and answer sessions that followed, Wyden explicitly mentioned location tracking no fewer than five separate times—discussing it far more frequently than the program we actually know about, involving bulk collection of call records:

[A]s you listen to this talk, ponder that most of us have a computer in our pocket that potentially can be used to monitor us 24/7. […]

 This is particularly true if you’re vacuuming up cell phone location data, essentially turning every American’s cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans’ location information in bulk. […]

The piece of technology we consider vital to the conduct of our everyday personal and professional life hapens to be a combination phone bug, listening device, location tracker, and hidden camera. […]

Today, government officials are openly telling the press that they have the authority to effectively turn Americans’ smart phones and cell phones into location-enabled homing beacons. […]

These smartphones that everybody’s got in their pockets […] can be used as a tracking system for everyone in this room, 24/7.

This is not exactly subtle. Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records. Wyden, of course, would know full well whether there is or is not any such program via his role on the Intelligence Committee—and his focus on location tracking over the activities we know NSA is engaged in, such as monitroing of Internet communications and bulk collection of phone records, would be an inexplicable obsession if he knew that no such program existed.

There’s another hint along these lines early in the talk, when Wyden says that “secret rullings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act as well as section 702 of the FISA statute in some surprising ways.” Wyden says that these rulings “can be astoundingly broad” and then adds: “The one that authorizes the bulk collection of phone records is as broad as any I have ever seen.” (Emphasis mine.) That’s a very specific word choice: not broader than any he has seen, or the broadest ruling he has seen—even though a ruling authorizing bulk collection of every American’s phone records would be the broadest anyone without access to classified information had ever seen—but rather as broad. As in: there are other rulings of comparable breadth, perhaps allowing bulk collection of other types of information about all Americans. Wyden gestures in this direction again later, calling it “especially troubling” that “there is nothing in the Patriot Act that limits this sweeping bulk colection to phone records.”

If this sounds like overreading, consider that actually it’s consistent with several Senators’ previous efforts to hint at the nature of their concerns without directly exposing classified programs. As Wyden noted at the outset of his talk, he and his colleague Mark Udall (D-CO) may not be able to “tap out the truth in Morse code,” but they have “tried just about everything else we could think of to warn the American people.” That means they have often, without explicitly disclosing classified information, given some very strong hints to what they were concerned about to those of us paying close attention. For instance, as I noted in one of those prior posts, Sen. Udall frequently explained his concerns using the same specific, and rather curiously worded example, warning that Section 215 gave the government “unfettered” access to “business records ranging from a cell phone company’s phone records to an individual’s library history.” (Emphasis mine.) The pointed contrast between “an individual’s” library records and “a cell phone company’s” phone records was, in retrospect, about as close as Udall could come to explicitly warning that phone records were being collected in bulk, not merely for specifically targeted individuals. Perhaps this talk was as close as Wyden can come to warning us—without coming right out and saying it—that there’s a bulk location tracking program yet to be disclosed.

NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

If you want a good primer on the NSA spying disclosed so far, check out the item by Cato alum Tim Lee on the Washington Post’s WonkBlog. It’s a blessedly brief but informative run-down covering:

- mass collection of phone records;

- the PRISM program, which gathers data about Americans incidentally to its stated aim of foreign surveillance; and

- the NSA’s fiber optic eavesdropping: “[T]he NSA has a broad program (actually, several of them) to sweep up Internet traffic from fiber optic cables.”

Also, be sure to read the letter Senators Wyden (D-OR) and Udall (D-CO) sent to NSA head General Keith Alexander yesterday. In it, they point out inaccurate and misleading statements the NSA made in a recently distributed fact sheet. At a certain point, inaccuracies become willful.

On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.

It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order. And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.

Nobody knows where exactly the Court is headed with the Fourth Amendment in the challenging area of communications, but I’ve argued for reaching back to the wisdom of Justice Butler, dissenting in Olmstead (1929):

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged – those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass.