Weekend Economists Down Under May 23-26, 2014

[Demeter]

59. NSA Spying Is a Power Grab: Mass Surveillance Is Completely Unnecessary

http://www.washingtonsblog.com/2014/05/nsa-spying-power.html

Top security experts – including the highest-level government officials and the top university experts – say that mass surveillance actually increases terrorism and hurts security. They say that our government failed to stop the Boston bombing because they were too busy spying on millions of innocent Americans instead of focusing on actual bad guys. Moreover, high-level NSA executive Bill Binney – who created the agency’s mass surveillance program for digital information – made it easy for the NSA to catch bad guys without spying on innocent Americans … all while strengthening America against security breaches. (Binney is a 32-year NSA veteran widely regarded as a “legend” within the agency. Binney was the senior technical director within the agency and managed thousands of NSA employees. Binney has been interviewed by virtually all of the mainstream media, including CBS, ABC, CNN, New York Times, USA Today, Fox News, PBS and many others.) Binney’s system automatically encrypted information about Americans … but that information could be decrypted if a judge ordered that a specific American was a bad guy or was connected with a bad guy.

But after 9/11, the NSA instead switched to the current system which conducts mass surveillance on all Americans. Specifically, the system rolled out by the NSA after 9/11 used parts of Binney’s system … but stripped out all of the encryption which would have protected Americans’ privacy absent a court order.

Why Did They Do It?

Why did the NSA switch from the privacy-protecting system which worked to catch terrorists to one that spied on all Americans in violation of their constitutional rights? A very high-level congressional committee security staffer – Diane Roark – gave a hint on a Frontline show this month. Roark was the congressional staffer in charge of overseeing the NSA for the Republicans on the House Intelligence Committee. Roark explains:

NARRATOR: [Senior House Intelligence Committee staff between 1985-2002 Diane] Roark was summoned to the top deck at the NSA to meet with Director Hayden.

DIANE ROARK: My whole point in going there was to ask him why he had taken off the protections, the encryptions and the automated tracking. I asked this any number of times, and he always evaded answering. And I finally just decided I was not going to leave the room until I got an answer. And so I kept asking.

So about the fifth time, he looked down, and I remember he could not look me in the eye, and he said, “We have the power. We don’t need them.” And he made clear that the power he was referring to was the commander-in-chief’s chief’s wartime authority.

In other words, the Constitution was tossed out the window and all Americans have been subjected to Orwellian surveillance ever since – not because it’s necessary or even efficient – but simply because they decided that they had the raw power to do so. Washington’s Blog asked Roark to explain what the NSA chief meant when he told her that NSA had the power to ignore the Constitution. She explained (via email):

Article II Powers

General Hayden referred to the President’s Article II powers [as commander-in-chief during wartime]. The Administration has defended these powers as allowing the President to override existing laws, and has said that the 2001 congressional Authorization for Use of Military Force (AUMF) was in essence a declaration of war and thus allows him to do so. The AUMF has never been revoked, and this obviously is necessary to stop the practice. In its January 2006 White Paper defending the portion of the program that had leaked in the NYT, toward the end DOJ also argued that wartime surveillance did not have to be accomplished “in the lease intrusive manner possible,” or words to that effect.

The use of Article II is continuing, despite extremely permissive legislation such as the PATRIOT Act and the FISA Amendment Act of 2008. While all eyes are focused on PA provisions 215 and 702, that fall under the FISA court, it appears that the great majority of the collection actually occurs under Executive Order 12333, invoking these Article II powers. Those powers are not subject to even the very weak FISA Court oversight (that was further eviscerated by the FAA in 2008). Regarding EO 12333, see Richard Clarke’s testimony before Senate Judiciary 1/14/14 in answer to Sen. Chris Coons. Greenwald/Snowden documents also reference the EO.

I believe the executive prefers this even more secret exercise of power mostly because Americans would be rebellious if they knew the full extent of surveillance. Another reason for invoking them appears to have been Mr. Cheney’s known determination to recover presidential powers, especially national security powers, that he believed were much weakened after Watergate; this issue was covered by Frontline. And of course the administration would claim it is because of the need for secrecy so terrorists would not take precautions — although as Greenwald notes, there is now “nowhere to hide,” at least to communicate electronically in privacy.

The exercise of these alleged powers appear to include, e.g.

- past torture and rendition practices

- massive “upstream” collection from fiber optic cables as referenced in Snowden documents and as revealed by Mark Klein in 1/06.

- massive postal mail surveillance
Clarke testimony refers to “a great deal of metadata collected by the national security letter program.”

- amassing of government data on US persons. This is contrary to an explicit privacy law provision forbidding the practice, and apparently under an alleged national security exception other than that for air travel. See Julia Angwin, WSJ 12/12/12, http://online.wsj.com/news/articles/SB10001424127887324478304578171623040640006

- collection of citizen “business records” other than communications records.

- claiming state secrets to avoid regular (Article III) court review of such tactics, as well as withholding from these courts the source of evidence against defendants that was collected through such means, including “parallel construction” of a fake evidentiary trail to present during trial discovery. See e.g. Reuters 8/13, http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.
DOJ went so far as to allow the Solicitor General to lie (apparently unknowingly) to the Supreme Court about this.

THINTHREAD

One part of [Binney's system] that was critical to The Program [i.e. the NSA's unconstitutional mass surveillance system] after 9/11 was adopted but was significantly changed for the worse, both in design and in operational rules. This part, for instance, contained the software for encryption and for automated tracking of accesses to the collection files, and that code was deactivated.

Looking at the history of The Program, it is pretty clear that there were operational reasons why the software was deactivated and the Fourth Amendment skirted.

- First, they did not get any warrants initially and they did not want to have to get warrants. Even later when the program was “legalized,” the government successfully insisted that it be allowed to obtain group rather than individual warrants for the material coming under FISC. As of FAA of 2008, the FISC could not turn down such a warrant request, although the Court could insist on modifying it.

- It is obvious that they wanted to be able to look at the identifying information of any US person communications or metadata that they collected – the claim that they have only numbers and email addresses is quite disingenuous. They could easily go to the telcos and IT firms and ask for it, or provide them a National Security Letter that does not require a warrant, not to mention the availability to anyone of reverse white pages and the fact that many email addresses contain the user’s name.

- The automated tracking of all accesses to the database was always opposed by analysts who feared their individual levels of productivity would be compared. But surely the main reason why the government deactivated it was so that there would not be a high probability that unauthorized use of the material would be detected. Otherwise, why would they deactivate a far less labor-intensive system that is not only efficient but also virtually foolproof (except maybe from abuse by a system administrator).

- Remember that the 12 unauthorized “Lovint” cases [where NSA employees were caught spying on love interests] were detected through routine polygraphs, or at least so I once read.

- Initially, if you recall, compliance was monitored only through a) paper files containing the authorizations to analyze US person communications that could be issued by 22 or so designated persons and b) the observation of human supervisors. This was what Hayden said in his 1/06 press conference, I believe, and it was often repeated thereafter. Snowden shows and NSA admits that in some cases all the analysts have to do is fill out a brief computerized form, choosing among “canned” rationales for access to a given file. Further, it has been admitted publicly that use of the data now extends beyond its initial confinement to counterterrorism.

- As the extensively-sourced Reuters article above indicates, this databased material already is being used for criminal cases and has been withheld from the courts — so doubtless NSA does not want that practice to be automatically tracked.

- Further, Russell Tice has alleged that there are extremely compartmented sub-programs in which US opinion leaders and high-level officials are deliberately tracked. Again, NSA obviously would not want such activity to be subject to automated tracking.

Washington’s Blog also asked senior NSA veteran Bill Binney why he thought NSA switched from an automatic privacy-protecting encryption program to its current dragnet.

Binney told us:

When you drop the privacy protections, you are able to spy on all your political opponents and do the things that the IRS does plus get rid of people you don’t want in government, like General Petraeus and General Allen and others like Elliot Spitzer, etc.

The data they used against Spitzer was from what I understand: phone calls, e-mail and money transactions. All part of this mass collection of data.

Others were confronted with their data too. Like [Pulitzer prize-winning New York Times investigative reporter] Jim Risen, [chief Fox News Washington correspondent] Jim Rosen, AP, Jesselyn Radack [former ethics adviser to the United States Department of Justice, and attorney for Edward Snowden, Thomas Drake and other high-level whistleblowers], the NSA whistleblowers Thomas Drake, Kirk Wiebbe, me, etc. In at least our case, they had a warrantless wire tap on us as early as May 2006.

Further, you can target Supreme Court Judges, other judges, Senators, Representatives, law firms and lawyers, and just anybody you don’t like … reporters included.

Not to mention the tea party and other politically active or wanna be’s.

It also meant they did not have to go to the FISC [Foreign Intelligence Surveillance Court] to get a warrant to look into US citizens.

Spitzer – the tough New York Attorney General who went after corrupt bankers more than anyone since – was snared through the Patriot Act. Former CIA director General Petraeus was brought down when the government spied on his email communications. Binney has previously said that Petraeus seems to have gotten on the government’s “enemies list”, and was thus spied on … and drummed out as CIA director. General Allen was also relieved of his position when his emails were leaked. The government has now admitted that it spied on the Associated Press... More.

Binney has also said that “We are now in a police state“, because the government is “laundering” data generated by mass surveillance, to go after people that – for whatever reason – the government doesn’t like. This is especially concerning because it is clear that mass surveillance is being used more to crush dissent than to stop terrorism. (And that’s been true for 500 years...). Another high-level NSA whistleblower – Russel Tice (mentioned above by Diame Roark) – says that the NSA is spying on – and blackmailing – top government officials and military officers, including Supreme Court Justices, high-ranked generals, Colin Powell and other State Department personnel, and many other top officials...He says the NSA started spying on President Obama when he was a candidate for Senate...