Forum Post: The Making of a Global Security State: The Five Uncontrollable Urges of a Secrecy-Surveillance World
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The Making of a Global Security State: The Five Uncontrollable Urges of a Secrecy-Surveillance World
Monday, 17 June 2013 09:38 By Tom Engelhardt, TomDispatch | News Analysis
As happens with so much news these days, the Edward Snowden revelations about National Security Agency (NSA) spying and just how far we’ve come in the building of a surveillance state have swept over us 24/7 -- waves of leaks, videos, charges, claims, counterclaims,skullduggery, and government threats. When a flood sweeps you away, it’s always hard to find a little dry land to survey the extent and nature of the damage. Here’s my attempt to look beyond the daily drumbeat of this developing story (which, it is promised, will go on for weeks, if not months) and identify five urges essential to understanding the world Edward Snowden has helped us glimpse.
1.The Urge to be Global
Corporately speaking, globalization has been ballyhooed since at least the 1990s, but in governmental terms only in the twenty-first century has that globalizing urge fully infected the workings of the American state itself. It’s become common since 9/11 to speak of a “national security state.” But if a week of ongoing revelations about NSA surveillance practices has revealed anything, it’s that the term is already grossly outdated. Based on what we now know, we should be talking about an American global security state.
Much attention has, understandably enough, been lavished on the phone and other metadata about American citizens that the NSA is now sweeping up and about the ways in which such activities may be abrogating the First and Fourth Amendments of the U.S. Constitution. Far less attention has been paid to the ways in which the NSA (and other U.S. intelligence outfits) are sweeping up global data in part via the just-revealed Prism and other surveillance programs.
Sometimes, naming practices are revealing in themselves, and the National Security Agency’s key data mining tool, capable in March 2013 of gathering “97 billion pieces of intelligence from computer networks worldwide,” has been named “boundless informant.” If you want a sense of where the U.S. Intelligence Community imagines itself going, you couldn’t ask for a better hint than that word “boundless.” It seems that for our spooks, there are, conceptually speaking, no limits left on this planet.
Today, that "community" seeks to put not just the U.S., but the world fully under its penetrating gaze. By now, the first “heat map” has been published showing where such information is being sucked up from monthly: Iran tops the list (14 billion pieces of intelligence); then come Pakistan (13.5 billion), Jordan (12.7 billion), Egypt (7.6 billion), and India (6.3 billion). Whether you realize this or not, even for a superpower that has unprecedented numbers of military bases scattered across the planet and has divided the worldinto six military commands, this represents something new under the sun. The only question is what?
The twentieth century was the century of “totalitarianisms.” We don’t yet have a name, a term, for the surveillance structures Washington is building in this century, but there can be no question that, whatever the present constraints on the system, “total” has something to do with it and that we are being ushered into a new world. Despite the recent leaks, we still undoubtedly have a very limited picture of just what the present American surveillance world really looks like and what it plans for our future. One thing is clear, however: the ambitions behind it are staggering and global. In the classic totalitarian regimes of the previous century, a secret police/surveillance force attempted, via every imaginable method, including informers, wire tappers, torture techniques, imprisonment, and so on to take total control of a national environment, to turn every citizen’s life into the equivalent of an open book, or more accurately a closed, secret file lodged somewhere in that police system. The most impressive of these efforts, the most global, was the Soviet one simply because the USSR was an imperial power with a set of disparate almost-states -- those SSRs of the Caucasus and Central Asia -- within its borders, and a series of Eastern European satellite states under its control as well. None of the twentieth-century totalitarian regimes, however, ever imagined doing the same thing on a genuinely global basis. There was no way to do so. Washington’s urge to take control of the global communications environment, lock, stock, and chat room, to gather its “data” -- billions and billions of pieces of it -- and via inconceivably powerful computer systems, mine and arrange it, find patterns in it, and so turn the world into a secret set of connections, represents a remarkable development. For the first time, a great power wants to know, up close and personal, not just what its own citizens are doing, but those of distant lands as well: who they are communicating with, and how, and why, and what they are buying, and where they are travelling, and who they are bumping into (online and over the phone).
Until recently, once you left the environs of science fiction, that was simply beyond imagining. You could certainly find precursors for such a development in, for instance, the Cold War intelligence community’s urge to create a global satellite system that would bring every inch of the planet under a new kind of surveillance regime, that would map it thoroughly and identify what was being mapped down to the square inch, but nothing so globally up close and personal. The next two urges are intertwined in such a way that they might be thought as a single category: your codes and theirs.
2.The Urge to Make You Transparent
The urge to possess you, or everything that can be known about you, has clearly taken possession of our global security state. With this, it’s become increasingly apparent, go other disturbing trends. Take something seemingly unrelated: the recent Supreme Court decision that allows the police to take a DNA swab from an arrestee (if the crime he or she is charged with is “serious”). Theoretically, this is being done for “identification” purposes, but in fact it's already being put to other uses entirely, especially in the solving of separate crimes.
If you stop to think about it, this development, in turn, represents a remarkable new level of state intrusion on private life, on your self. It means that, for the first time, in a sure-to-widenset of circumstances, the state increasingly has access not just -- as with NSA surveillance -- to your Internet codes and modes of communication, but to your most basic code of all, your DNA. As Justice Antonin Scalia put it in his dissent in the case, “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Can global DNA databases be far behind?
If your DNA becomes the possession of the state, then you are a transparent human being at the most basic level imaginable. At every level, however, the pattern, the trend, the direction is the same (and it’s the same whether you’re talking about the government or giant corporations). Increasingly, access to you, your codes, your communications, your purchases, your credit card transactions, your location, your travels, your exchanges with friends, your tastes, your likes and dislikes is what’s wanted -- for what’s called your “safety” in the case of government and your business in the case of corporations.
Both want access to everything that can be known about you, because who knows until later what may prove the crucial piece of information to uncover a terrorist network or lure in a new network of customers. They want everything, at least, that can be run through a system of massive computers and sorted into patterns of various potentially useful kinds. You are to be, in this sense, the transparent man or transparent woman. Your acts, your life patterns, your rights, your codes are to be an open book to them -- and increasingly a closed book to you. You are to be their secret and that “you” is an ever more global one.
3.The Urge to Make Themselves Opaque
With this goes another reality. They are to become ever less accessible, ever more impenetrable, ever less knowable to you (except in the forms in which they would prefer you to know them). None of their codes or secrets are to be accessed by you on pain of imprisonment. Everything in the government -- which once was thought to be “your” government -- is increasingly disappearing into a professional universe of secrecy. In 2011, the last year for which figures are available, the government classified 92 million documents. And they did so on the same principle that they use in collecting seemingly meaningless or harmless information from you: that only in retrospect can anyone know whether a benign-looking document might prove anything but. Better to deny access to everything.
In the process, they are finding new ways of imposing silence on you, even when it comes to yourself. Since 2001, for instance, it has become possible for the FBI to present you with a National Security Letter which forces you to turn over information to them, but far more strikingly gags you from ever mentioning publicly that you got such a letter. Those who have received such letters (and 15,000 of them were issued in 2012) are legally enjoined from discussing or even acknowledging what’s happening to them; their lives, that is, are no longer theirs to discuss. If that isn’t Orwellian, what is?
President Obama offered this reassurance in the wake of the Snowden leaks: the National Security Agency , he insisted, is operating under the supervision of all three branches of the government. In fact, the opposite could be said to be true. All three branches, especially in their oversight roles, have been brought within the penumbra of secrecy of the global security state and so effectively coopted or muzzled. This is obviously true with our ex-professor of Constitutional law and the executive branch he presides over, which has in recent years been ramping up its own secret operations.
When it comes to Congress, the people’s representatives who are to perform oversight on the secret world have been presented with the equivalent of National Security Letters; that is, when let in on some of the secrets of that world, they find they can’t discuss them, can’t tell the American people about them, can’t openly debate them in Congress. In public sessions with Congress, we now know that those who run our most secret outfits, if pushed to the wall by difficult questions, will as a concession respond in the “least untruthful manner” possible, as Director of National Intelligence James Clapper put it last week.
Given the secret world’s control over Congress, representatives who are horrified by what they’ve learned about our government’s secrecy and surveillance practices, like Democratic Senators Ron Wyden and Mark Udall, can only hint at their worries and fears. They can, in essence, wink at you, signal to you in obscure ways that something is out of whack, but they can’t tell you directly. Secrecy, after all.
Similarly, the judiciary, that third branch of government and other body of oversight, has, in the twenty-first century, been fully welcomed into the global security state’s atmosphere of total secrecy. So when the surveillance crews go to the judiciary for permission to listen in on the world, they go to a secret court, a Foreign Intelligence Surveillance (FISA) court, locked within that secret world. It, in turn, notoriously rubberstamps whatever it is they want to do, evidently offering no resistance whatsoever to their desires. (Of the 6,556 electronic surveillance requests submitted to the court in Obama’s first term in office, for instance, only one was denied.) In addition, unlike any other court in America, we, the American people, the transparent and ignorant public, can know next to nothing about it. And you know perfectly well why: the overriding needs of secrecy.
What, though, is the point of “oversight” if you can’t do anything other than what that secret world wants you to do?
We are, in other words, increasingly open to them and they are increasingly closed to us.
4.The Urge to Expand
As we’ve known at least since Dana Priest and William Arkin published their stunning series, “Top Secret America,” in the Washington Post in 2010, the U.S. Intelligence Community has expanded post-9/11 to levels unimaginable even in the Cold War era. Then, of course, it faced another superpower, not a small set of jihadis largely located in the backlands of the planet. It now exists on, as Arkin says, an “industrial scale.” And its urge to continue growing, to build yet more structures for surveillance, including a vast $2 billion NSA repository in Bluffdale, Utah, that will be capable of holding an almost unimaginable yottabyte of data, is increasinglywritten into its DNA.
For this vast, restless, endless expansion of surveillance of every sort and at every level, for thenearly half-million or possibly far more private contractors, aka “digital Blackwater,” now in the government surveillance business -- about 70% of the national intelligence budget reportedly goes to the private sector these days -- and the nearly five million Americans with security clearances (1.4 million with top security clearances, more than a third of them private contractors), the official explanation is "terrorism." It matters little that terrorism as a phenomenon is one of the lesser dangers Americans face in their daily lives and that, for some of the larger ones, ranging from food-borne illnesses to cars, guns, and what’s now called “extreme weather,” no one would think about building vast bureaucratic structures shrouded in secrecy, funded to the hilt, and offering Americans promises of ultimate safety.
Terrorism certainly rears its ugly head from time to time and there’s no question that the fear of some operation getting through the vast U.S. security net drives the employees of our global security state. As an explanation for the phenomenal growth of that state, however, it simply doesn’t hold water. In truth, compared to the previous century, U.S. enemies are remarkably scarce on this planet. So forget the official explanation and imagine our global-security-state-in-the-making in the grips of a kind of compulsive disorder in which the urge to go global, make the most private information of the citizen everywhere the property of the American state, and expand surveillance endlessly simply trumps any other way of doing things. In other words, they can’t help themselves. The process, the phenomenon, has them by the throat, so much so that they can imagine no other way of being. In this mood, they are paving the way for a new global security -- or rather insecurity -- world. They are, for instance, hiking spending on “cybersecurity,” have already secretly launched the planet’s first cyberwar, areplanning for more of them, intend to dominate the future cyber-landscape in a staggering fashion, continue to gather global data of every sort on a massive scale, and more generally are acting in ways that they would consider criminal if other countries engaged in them.
5.The Urge to Leak
The massive leaks of documents by Bradley Manning and Edward Snowden have few precedents in American history. Daniel Ellsberg’s Pentagon Papers leak is their only obvious predecessor. They are not, however, happenstances of our moment. They are signs of what’s to come. If, in surveillance terms, the urge to go global and impose ultimate secrecy on both the state’s secrets and yours, to prosecute whistleblowers to the maximum (at this point usually via the Espionage Act or, in the case of Manning, via the charge of “aiding the enemy,” and with calls of “treason” already in the air when it comes to Snowden), it’s natural that the urge to leak will rise as well.
If the surveillance state has reached an industrial level of operations, and ever more secrets are being brought into computer systems, then vast troves of secrets exist to be revealed, already cached, organized, and ready for the plucking. If the security state itself goes global, then the urge to leak will go global, too.
In fact, it already has. It’s easy to forget that WikiLeaks was originally created not just for American secrets but any secrets. Similarly, Manning uploaded his vast trove of secrets from Iraq, and Snowden, who had already traveled the world in the service of secrecy, leaked to an American columnist living in Brazil and writing for a British newspaper. His flight to Hong Kong and dream of Icelandic citizenship could be considered another version of the globalizing impulse.
Rest assured, they will not be the last. An all-enveloping atmosphere of secrecy is not a natural state of being. Just look at us individually. We love to tell stories about each other. Gossiping is one of the most basic of human activities. Revealing what others don’t know is an essential urge. The urge, that is, to open it all up is at least as powerful as the urge to shut it all down.
So in our age, considering the gigantism of the U.S. surveillance and intelligence apparatus and the secrets it holds, it’s a given that the leak, too, will become more gigantic, that leaked documents will multiply in droves, and that resistance to regimes of secrecy and the invasion of private life that goes with them will also become more global. It’s hard from within the U.S. to imagine the shock in Pakistan, or Germany, or India, on discovering that your private life may now be the property of the U.S. government. (Imagine for a second the reaction here if Snowden had revealed that the Pakistani or Iranian or Chinese government was gathering and storing vast quantities of private emails, texts, phone calls, and credit card transactions from American citizens. The uproar would have been staggering.)
As a result of all this, we face a strangely contradictory future in which ever more draconian regimes of secrecy will confront the urge for ever greater transparency. President Obama came into office promising a “sunshine” administration that would open the workings of the government to the American people. He didn’t deliver, but Bradley Manning, Edward Snowden, and other leakers have, and no matter how difficult the government makes it to leak or how hard it cracks down on leakers, the urge is almost as unstoppable as the urge not to be your government’s property.
You may have secrets, but you are not a secret -- and you know it.
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Snowden to Guardian: ‘Truth is coming, and it cannot be stopped’
By Dylan Stableford, Yahoo! News | The Lookout
http://news.yahoo.com/blogs/lookout/snowden-live-chat-144220722.html
Edward Snowden, America's most-wanted whistle-blower, says the truth about the government spying program he revealed will eventually come out, regardless of what happens to him.
"All I can say right now is the US Government is not going to be able to cover this up by jailing or murdering me," Snowden wrote in a live online chat with the Guardian on Monday. "Truth is coming, and it cannot be stopped.
The 29-year-old former defense contractor, who exposed the National Security Agency's massive domestic surveillance program after fleeing the United States, answered a series of questions submitted through the Guardian's website and Twitter (hashtag #AskSnowden).
First, Snowden stressed that his controversial leaks did not reveal any U.S. "operations against legitimate military targets":
I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target. Not only that, when NSA makes a technical mistake during an exploitation operation, critical systems crash. Congress hasn't declared war on the countries—the majority of them are our allies—but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we're not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the "consent of the governed" is meaningless.
He was asked how many copies of the NSA documents he made, and "if anything happens to you, do they still exist?"
According to the U.K. newspaper, the hour-and-a-half chat was subject to Snowden's "security concerns and also his access to a secure Internet connection." Snowden did not disclose his location. Earlier this month, Snowden was interviewed by the Guardian's Glenn Greenwald in his hotel room in Hong Kong. After the paper revealed his identity (at his request), he reportedly checked out of the hotel and went into hiding.
"I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest," Snowden said in his original interview. "There are all sorts of documents that would have made a big impact that I didn't turn over, because harming people isn't my goal. Transparency is."
On Monday, Snowden was asked if he was "suggesting that Manning indiscriminately dumped secrets into the hands of WikiLeaks" and intended to harm people. Bradley Manning, whose trial by court-martial is in its third week, is a former Army intelligence analyst charged with aiding the enemy.
"No, I'm not," Snowden responded. "WikiLeaks is a legitimate journalistic outlet and they carefully redacted all of their releases in accordance with a judgment of public interest. The unredacted release of cables was due to the failure of a partner journalist to control a passphrase. However, I understand that many media outlets used the argument that 'documents were dumped' to smear Manning, and want to make it clear that it is not a valid assertion here."
He was asked to elaborate on how much "direct access" the NSA had to phone-call records and if analysts could listen to the content of domestic calls without a warrant.
"The reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on—it's all the same," Snowden replied. "The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications."
Under authorization of the Foreign Intelligence Surveillance Act, Snowden continued, "Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as 'incidental' collection, but at the end of the day, someone at NSA still has the content of your communications":
All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time—and can be extended further with waivers rather than warrants.
Snowden was also asked why he did not fly directly to Iceland, where he told the Guardian he would have preferred to seek asylum:
Leaving the US was an incredible risk, as NSA employees must declare their foreign travel 30 days in advance and are monitored. There was a distinct possibility I would be interdicted en route, so I had to travel with no advance booking to a country with the cultural and legal framework to allow me to work without being immediately detained. Hong Kong provided that. Iceland could be pushed harder, quicker, before the public could have a chance to make their feelings known, and I would not put that past the current US administration.
Snowden, who said he had not had contact with the Chinese, scoffed at speculation that he would provide classified information to the Chinese or other governments in exchange for asylum.
"This is a predictable smear that I anticipated before going public, as the US media has a knee-jerk 'RED CHINA!' reaction to anything involving [Hong Kong] or the [People's Republic of China] and is intended to distract from the issue of US government misconduct," Snowden replied. "Ask yourself: if I were a Chinese spy, why wouldn't I have flown directly into Beijing? I could be living in a palace petting a phoenix by now."
He also responded to the argument, made by U.S. officials, that the NSA spy program has foiled dozens of terror plots:
Journalists should ask a specific question: since these programs began operation shortly after September 11th, how many terrorist attacks were prevented SOLELY by information derived from this suspicionless surveillance that could not be gained via any other source? Then ask how many individual communications were ingested to acheive that, and ask yourself if it was worth it. Bathtub falls and police officers kill more Americans than terrorism, yet we've been asked to sacrifice our most sacred rights for fear of falling victim to it.
Snowden thinks his revelation of the NSA spy program gives President Barack Obama "an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men. He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it."
Snowden added that he's become disillusioned with the public debate over his leak:
Initially I was very encouraged. Unfortunately, the mainstream media now seems far more interested in what I said when I was 17 or what my girlfriend looks like rather than, say, the largest program of suspicionless surveillance in human history.
Current, former officials back secret surveillance
By STEPHEN BRAUN | Associated Press
http://news.yahoo.com/current-former-officials-back-secret-surveillance-144904976.html
•
WASHINGTON (AP) — Top officials from the Obama and Bush administrations say the government's newly exposed secret surveillance programs have been essential to disrupting terrorist plots and have not infringed on Americans' civil liberties.
The officials justify the massive trawling for phone and Internet data as new revelations add to public disclosures about the classified operations.
Denis McDonough, President Barack Obama's chief of staff, said the executive, legislative and judicial branches of government, using "aggressive internal checks inside the administration, from inspectors general and routine audits, are overseeing how we do these programs."
McDonough, appearing on CBS' "Face the Nation," added, "The American people can feel confident that we have those three branches looking."
Officials from the George W. Bush administration, including former Vice President Dick Cheney and former CIA and National Security Agency head Michael Hayden, were among those who appeared on Sunday talk shows to back the government's reliance on data collection from Americans and foreign nationals. Like McDonough, they said the operations are constitutional and carefully scrutinized by authorities for any signs of abuse.
The latest reassurances came as a Washington Post report on Sunday described the massive structure of four major data collection programs that have been set up by the government since the terrorist attacks of Sept. 11, 2011. The Post report follows earlier stories based on documents provided by NSA contractor Edward Snowden.
Two secret programs, the Post reported in its new disclosures, are aimed at phone and Internet metadata, while two more target contents of phone and Internet communications.
Metadata includes logs and timing of phone calls and lists of Internet communications, but does not include the actual contents of communications. Even without knowing those contents, intelligence officials can learn much from metadata, including likely locations and patterns of behavior.
A previously reported surveillance program aimed at the phone logs and location information of millions of Americans is called Mainway, the Post reported. A second program targeting the Internet contact logs and location information of foreign users is called Marina. A third program, which intercepts telephone calls and routes their contents to government listeners, is called Nucleon.
A fourth program, Prism, exposed recently by Snowden, forces major Internet firms to turn over the detailed contents of Internet communications. Prism is aimed at foreign users but sometimes also sweeps up the content of Americans' emails and other Internet communications, officials have acknowledged.
"The metadata story does touch upon Americans in a massive way with phone records but not the content. The Prism story is about foreigners and it is about content," Hayden told NBC's "Meet the Press."
Rep. Mike Rogers, who heads the House Intelligence Committee, said any phone metadata from Americans swept up in the surveillance is held under careful safeguards, kept in a "lockbox" that can only be accessed if it becomes relevant to terror investigations. U.S. officials also said Saturday that gathered data is destroyed every five years.
"This is a lockbox with only phone numbers, no names, no addresses in it, we've used it sparingly," Rogers, R-Mich., said on CNN's "State of the Union."
But one congressional critic of the secrecy surrounding the government's surveillance raised doubts about the effectiveness about the widespread collection of Americans' phone metadata. "I don't think collecting millions and millions of Americans' phone calls — now this is the metadata, this is the time, place, to whom you direct the calls — is making us any safer," said Sen. Mark Udall, D-Colo. Udall said he would introduce a bill this week to narrow the reach of that collection to only "those who have a link to terrorism." Hayden said he worried that news reports about the programs have often provided erroneous information, "much to the harm of a rational national debate." He did not specify those concerns.
The disclosures, provided in recent days by both the Post and The Guardian newspaper, came from classified documents exposed by Snowden, 29, who was working as a private contractor with the NSA and later said he grew disenchanted by what he saw as a growing secret American surveillance apparatus. After working with the two newspapers, Snowden turned up in Hong Kong, prompting concern that he might cooperate with Chinese authorities.
"I am very, very worried that he still has additional information that he hasn't released yet, the Chinese would welcome the opportunity and probably be willing to provide immunity for him or sanctuary for him, if you will, in exchange for what he presumably knows," Cheney said on "Fox News Sunday."
Cheney added that he has "trouble believing" Snowden had access to all the materials he has disclosed, suggesting the possibility that Snowden had an accomplice inside U.S. security circles.
"I think you have to ask that question," Cheney said.
McDonough declined to speculate on Snowden's dealings with China or his access to secret documents, citing a law enforcement investigation. But he cautioned against "some of the hyperbole that now is being thrown around from him and from others involved in this debate that would somehow cast a pall on the intelligence community."
But McDonough disputed Snowden's claim that he had the ability to listen in on any phone conversation, including the president's.
"That's incorrect," McDonough said.
NSA Spying Extends to Contents of US Phone Calls
Tuesday, 18 June 2013 14:17 By Declan McCullagh, Occupy.com | Report
http://truth-out.org/news/item/17064-nsa-spying-extends-to-contents-of-us-phone-calls
The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant said.
Rep. Jerrold Nadler, a New York Democrat, disclosed on Thursday that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."
If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee. Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.
James Owens, a spokesman for Nadler, provided a statement on Sunday morning, a day after this article was published, saying: "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans' phone calls without a specific warrant." Owens said he couldn't comment on what assurances from the Obama administration Nadler was referring to, and said Nadler was unavailable for an interview. (CNET had contacted Nadler for comment on Friday.)
Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, being able to listen to phone calls would mean the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.
Nadler's initial statement appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii "wiretap anyone from you or your accountant to a federal judge to even the president."
There are serious "constitutional problems" with this approach, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. "It epitomizes the problem of secret laws."
The NSA declined to comment to CNET. (This is unrelated to the disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)
Rep. Mike Rogers (R-Mich.), the head of the House Intelligence committee, told CNN on Sunday that the NSA "is not listening to Americans' phone calls" or monitoring their e-mails, and any statements to the contrary are "misinformation." It would be "illegal" for the NSA to do that, Rogers said.
The Washington Post disclosed Saturday that the existence of a top-secret NSA program called NUCLEON, which "intercepts telephone calls and routes the spoken words" to a database. Top intelligence officials in the Obama administration, the Post said, "have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as NUCLEON."
Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls — in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.
William Binney, a former NSA technical director who helped to modernize the agency's worldwide eavesdropping network, told the Daily Caller this week that the NSA records the phone calls of 500,000 to 1 million people who are on its so-called target list, and perhaps even more. "They look through these phone numbers and they target those and that's what they record," Binney said. Brewster Kahle, a computer engineer who founded the Internet Archive, has vast experience storing large amounts of data. He created a spreadsheet this week estimating that the cost to store all domestic phone calls a year in cloud storage for data-mining purposes would be about $27 million per year, not counting the cost of extra security for a top-secret program and security clearances for the people involved.
NSA's annual budget is classified but is estimated to be around $10 billion.
Documents that came to light in an EFF lawsuit provide some insight into how the spy agency vacuums up data from telecommunications companies. Mark Klein, who worked as an AT&T technician for over 22 years, disclosed in 2006 (PDF) that he witnessed domestic voice and Internet traffic being surreptitiously "diverted" through a "splitter cabinet" to secure room 641A in one of the company's San Francisco facilities. The room was accessible only to NSA-cleared technicians.
AT&T and other telecommunications companies that allow the NSA to tap into their fiber links receive absolute immunity from civil liability or criminal prosecution, thanks to a law that Congress enacted in 2008 and renewed in 2012. It's a series of amendments to the Foreign Intelligence Surveillance Act, also known as the FISA Amendments Act.
That law says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.
A requirement of the 2008 law is that the NSA "may not intentionally target any person known at the time of acquisition to be located in the United States." A possible interpretation of that language, some legal experts said, is that the agency may vacuum up everything it can domestically — on the theory that indiscriminate data acquisition was not intended to "target" a specific American citizen.
Rep. Nadler's statement that NSA analysts can listen to calls without court orders came during a House Judiciary hearing on June 13 that included FBI director Robert Mueller as a witness.
Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek "a special, a particularized order from the FISA court directed at that particular phone of that particular individual." Is information about that procedure "classified in any way?" Nadler asked.
"I don't think so," Mueller replied.
"Then I can say the following," Nadler said. "We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that...In other words, what you just said is incorrect. So there's a conflict."
Sen. Dianne Feinstein (D-Calif.), the head of the Senate Intelligence committee, separately acknowledged that the agency's analysts have the ability to access the "content of a call."
Director of National Intelligence Michael McConnell indicated during a House Intelligence hearing in 2007 that the NSA's surveillance process involves "billions" of bulk communications being intercepted, analyzed, and incorporated into a database.
They can be accessed by an analyst who's part of the NSA's "workforce of thousands of people" who are "trained" annually in minimization procedures, he said. (McConnell, who had previously worked as the director of the NSA, is now vice chairman at Booz Allen Hamilton, Snowden's former employer.)
If it were "a U.S. person inside the United States, now that would stimulate the system to get a warrant," McConnell told the committee. "And that is how the process would work. Now, if you have foreign intelligence data, you publish it [inside the federal government]. Because it has foreign intelligence value."
McConnell said during a separate congressional appearance around the same time that he believed the president had the constitutional authority, no matter what the law actually says, to order domestic spying without warrants.
Former FBI counterterrorism agent Tim Clemente told CNN last month that, in national security investigations, the bureau can access records of a previously made telephone call. "All of that stuff is being captured as we speak whether we know it or like it or not," he said. Clemente added in an appearance the next day that, thanks to the "intelligence community" — an apparent reference to the NSA — "there's a way to look at digital communications in the past."
NSA Director Keith Alexander said on June 12 that his agency's analysts abide by the law: "They do this lawfully. They take compliance oversight, protecting civil liberties and privacy and the security of this nation to their heart every day."
But that's not always the case. A New York Times article in 2009 revealed the NSA engaged in significant and systemic "overcollection" of Americans' domestic communications that alarmed intelligence officials. The Justice Department said in a statement at the time that it "took comprehensive steps to correct the situation and bring the program into compliance" with the law. Jameel Jaffer, director of the ACLU's Center for Democracy, says he was surprised to see the 2008 FISA Amendments Act be used to vacuum up information on American citizens. "Everyone who voted for the statute thought it was about international communications," he said.
Originally published by CNET