The NSA's Warrantless WireTapping

The former NSA official held his thumb and forefinger close together. “We are, like, that far from a turnkey totalitarian state,” he says. —Wired Magazine, April 2012 

BY TREVOR TIMM 
MARCH 21, 2012 
Courtesy Of "The Electronic Frontier Foundation"

Last week, in Wired Magazine, noted author James Bamford reported on an expansive $2 billion “data center” being built by the NSA in Utah that will house an almost unimaginable amount of data on its servers, along with the world’s fastest supercomputers. Part of the purpose of this new center, according to Bamford, is to store “all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’”

In the Wired article, Bamford interviewed former NSA official William Binney, a “crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network.” Binney further shed light on the NSA’s warrantless wiretapping program, first exposed by the New York Times in 2005 and the subject of EFF’s long running suit Jewel v. NSA, which challenges the constitutionality of the NSA’s program.

The NSA claims it only has access to emails and phone calls of non-U.S. citizens overseas, but Binney provides more detail to the many previous reports by the New York Times, USA Today,New Yorker, and many more that the program indeed targets US based email records. In the 11 years since 9/11, Binney estimates 15 to 20 trillion “transactions” have been collected and stored by the NSA. From the Wired article:

He explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US. The network of intercept stations goes far beyond the single room in an AT&T building in San Francisco exposed by a whistle-blower in 2006. “I think there’s 10 to 20 of them,” Binney says. “That’s not just San Francisco; they have them in the middle of the country and also on the East Coast.”

The Director of NSA, General Keith Alexander, testified at a House subcommittee hearing Tuesday and Rep. Hank Johnson (D-GA) grilled him on the details of the Wired story. He appeared to deny the main points of the article, including that the NSA was intercepting emails, phone calls, Google searches, and phone records of individuals in the United States—as well as the technical capabilities of the program’s software described by Binney. But perhaps more strangely, Alexander also seemed to claim the NSA did not have the technical ability to collect Americans’ emails and Internet traffic even if it weren’t required to get a warrant:

Gen. Alexander: In the United States we’d have to go through the FBI process, a warrant to get that and serve it to somebody to actually get it.

Rep. Johnson: But you do have the capability of doing it?

Gen. Alexander: Not in the United States.

Rep. Johnson: Not without a warrant?

Gen. Alexander: We don’t have the technical insights in the United States, in other words, you have to have something to intercept or some way of doing that. Either by going to a service provider with a warrant, or you have to be collecting in that area. We’re not authorized to collect, nor do we have the equipment in the United States to actually collect that kind of information. (emphasis ours)

In our lawsuits, EFF has provided evidence that the NSA operated a monitoring center out of AT&T’s switching facility in San Francisco that has the ability to do exactly what Gen. Alexander says the NSA can’t.  In light of all the evidence, it is hard to take comfort from Gen. Alexander’s apparent denial.  In previous discussions of the warrantless wiretapping program, the government has used crabbed and unusual definitions of words to make misleading statements that also seem like denials but turn out to be largely word games. 

In one prominent example, then Principal Deputy Director of National Intelligence Michael Hayden said in a 2006 statement: “Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations….”  Later, when confronted with evidence of a wider drift net program during his confirmation hearing, he explained “I pointedly and consciously downshifted the language I was using. When I was talking about a drift net over Lackawanna or Freemont or other cities, I switched from the word ‘communications’ to the much more specific and unarguably accurate 'conversation.'”    

Notably, the NSA’s interpretation of what it means to “collect” communications seems to be quite limited.  Under Department of Defense regulations, information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component,” and “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form[,]”  So, under this definition, if the communications of millions of ordinary Americans were gathered and stored indefinitely in Utah, it would not be “collected” until the NSA “officially accepts, in some manner, such information for use within that component.” 

The illegality of warrantless wiretapping, however, does not depend on when the NSA officially accepts the information or processes it into intelligible form (whatever that means).  Americans' privacy and constitutional protections do and should not hinge on word games.  We are looking forward to establishing, in the Jewel v. NSA case, a simpler proposition: that the government can’t spy on anyone, much less everyone, without a warrant.

The Surveillance Regime

April 7, 2010
Courtesy Of The Nation

The recent California federal district court ruling that the Bush administration's warrantless wiretapping violated a 1978 surveillance law was the first significant judicial rebuke to post-9/11 government eavesdropping. For that reason alone, Judge Vaughn Walker's damages award to the Muslim charity Al-Haramain and its attorneys, targets of unlawful spying in 2004, is worthy of celebration. But the ruling won't change our current deeply troubling surveillance regime. In that sense, it is a timely reminder of unfinished business.

Ever since Barack Obama took office, accountability for rights violations during the "war on terror" has been thin. Victims of wrongful overseas detention, surveillance and torture have received no apology and no reparations. Despite an early commitment to close Guantánamo, 183 prisoners remain there. Indeed, Obama has released fewer detainees than Bush did during his last year in office. And despite an early promise to protect the First Amendment rights of Muslim charities, Obama has done nothing to change the onerous application of terrorism financing laws. Walker's decision is only the second to have ruled against the so-called Terrorist Surveillance Program. All other challenges--including one against the odious 2008 FISA Amendments Act (FAA), which The Nation has joined as a plaintiff--ultimately got booted at the courthouse door.

Even if Walker's opinion survives possible appeal, it will have no effect on the broad surveillance powers unleashed by the FAA, which passed with then-Senator Obama's support. Under that law, the government can dispense with individualized warrants, the cornerstone of Fourth Amendment privacy protections. Absent meaningful judicial review, we simply can't know how much surveillance the government is carrying out.

Continuity, not change, has characterized the conduct of Eric Holder's Justice Department. Walker documents, in his opinion, the government's persistent "refusal to cooperate with the court's orders," its improper use of procedural delays and even point-blank refusals to produce information. Yes, this was business as usual during the Bush era. But Walker was talking about events on Obama's watch.

Nor is Walker's experience unusual. In lawsuits by survivors of the CIA's "black sites" and Guantánamo's interrogation rooms, the government either keeps insisting that "state secrets" require outright dismissal or has stuck to the canard that noncitizens forcibly brought into US custody overseas lack all constitutional rights. In Guantánamo litigation, habeas lawyers complain about obfuscation, secrecy and delay not dissimilar from what they faced in the Bush era.

Blaming the lawyers is easy. But it is the otherwise near-absolute absence of accountability that makes Walker's opinion such a lonely beacon. This absence is, in large part, a result of the Obama administration's failure to explain to the American people that the surveillance program violated the Constitution, and that unlawful and futile torture was rife in Guantánamo and the black sites.

It is not too late to win the political, or the moral, battle. It is not too late to use the bully pulpit of the presidency to explain that reckless and illegal incursions into privacy rights are no road to security. It is only by taking on that battle that the Obama administration, and not just a handful of voices on the federal bench, can produce the real change its lawyers have been fighting.

NSA Wiretap Program Declared Illegal

By Marc Ambinder
MAR 31 2010, 3:16 PM ET
Courtesy Of The Atlantic

The National Security Agency broke the law when it wiretapped two American lawyers working for the El-Haramain Charity Foundation, an judge ruled Wednesday.

The government has not decided whether to appeal this long-awaited decision, as it touches on subjects ranging from the state secrets privilege to the breadth of President Bush's "Terrorist Surveillance Program."

The ruling is a major symbolic victory for civil libertarians, although its effects on future cases will be limited, and no more information about the program will be disclosed. El-Haramain v. Obama has bounced back and forth from District Court Judge Vaughn Walker, the chief judge for federal courts in Northern California, to the 9th Circuit Court of Appeals, which rejected a government motion to dismiss it entirely. Another important victory for civil libertarians: Vaughn held that the Foreign Intelligence Surveillance Act should be given more weight than the state secrets privilege.

For months, the government argued that the charity could not possibly establish, using unclassified information, that it had been spied upon. It argued that even though the TSP had been revealed, it could not turn over other evidence in the case without jeopardizing national security. Several judges have seen the evidence and disagreed. People familiar with the case believe that the evidence relates to the mechanism by which the surveillance program was carried out: perhaps a third country, or private contractors, assisted the NSA.

So, the Justice Department asserted the "state secrets privilege" and refused to provide the plaintiffs with classified evidence that would show whether or not the charity had actually been wiretapped.

Of course, this was a bit of a game, because the government accidentally gave the plaintiffs a number of classified documents which proved conclusively that the charity's phone lines were tapped by the National Security Agency.

Still, it was up to the charity to establish that its communications were intercepted solely on the basis of the public record -- and that the wiretapping was, on its merits, illegal. The judge agreed today that both thresholds had been reached. Some civil libertarians wanted him to order a full trial, which would have revealed more about the program. This, Walker did not do. Still, his ruling, if it stands, will serve as a check on the unconstrained use of executive power.

Walker, an inventive and creative judge who is also presiding over the trial about the legality of the gay-marriage-banning Proposition 8, was clearly skeptical of the government's contentions and its legal tactics.

Still, he went out of his way to give the government a chance to make its case. And he did not declare the use of the state secrets privilege to be invalid, which may be one reason why the government might decide not to appeal the ruling.

NSA WireTaps Exceeded Law

Officials Say U.S. Wiretaps Exceeded Law

By ERIC LICHTBLAU and JAMES RISEN
Published: April 15, 2009
Courtesy Of The New York Times

WASHINGTON — The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

In a statement on Wednesday night, the N.S.A. said that its “intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations.” The Office of the Director of National Intelligence, which oversees the intelligence community, did not address specific aspects of the surveillance problems but said in a statement that “when inadvertent mistakes are made, we take it very seriously and work immediately to correct them.”

The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the Congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law, Congressional officials said.

Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law. “We have received notice of a serious issue involving the N.S.A., and we’ve begun inquiries into it,” a Congressional staff member said.

Separate from the new inquiries, the Justice Department has for more than two years been investigating aspects of the N.S.A.’s wiretapping program.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.