17 January 2014 — Unredacted
[On the 17 January] President Obama delivered a speech announcing the reforms he will make to the operations of the National Security Agency (NSA). The reforms, drawing from some of the 43 recommendations made by an outside Review Group on Intelligence and Communications Technologies established by the president, include curtailing some spying of foreign leaders, modest limits on the powerful National Security Letters surveillance tool, and –as yet not completely specified– modifications to telephone metadata collection and reporting.
Despite stating he was “not going to dwell on Mr. Snowden’s actions or motivations,” the President did criticize Snowden’s “sensational” disclosures for “shedding more heat than light.” What the President did not say was that these surveillance reforms would never even have been contemplated without the Snowden revelations. In fact, these leaks did not just “shed heat and light” on the NSA’s surveillance practices and metadata collection. They disproved a series of lies that the administration and its Intelligence Community repeatedly told the American public in an attempt to keep this surveillance in the dark.
To bring these lies more fully out of the dark, Unredacted presents our list of “Top 10” lies -from the President, Congress, and Intelligence Officials- about the US government’s surveillance programs:
1. “It is transparent.” President Obama, June 16, 2013, on the Charlie Rose Show
In a June 16, 2013, interview with the Charlie Rose Show, President Obama defended the Foreign Intelligence Surveillance Court (FISC), stating “It is transparent…So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.”
The cascade of revelations about the lack of transparency on the secret court was highlighted by FISC’s own October 3, 2011, ruling, which Director of National Intelligence James Clapper declassified in response to Snowden’s leaks, that chastised the government for misleading the Court -three times in 2011 alone- about the nature of its surveillance programs. OpentheGovernment.org’s 2013 Secrecy Report notes, “the unchecked expansion in the growth of the government’s surveillance programs is due in large measure to the absolute secrecy surrounding the FISC and how it is interpreting the law. The FISC’s opinions interpreting Section 215 of the PATRIOT Act has allowed for a much broader collection of data than most national security and civil liberties groups, and even some Members of Congress, understood the law to permit.” Representative Justin Amash (R-Mich) added that meetings with the House Intelligence Committee to discuss surveillance programs more generally were a “farce,” noting that “the release he had to sign to view classified documents prohibited him from discussing them with anyone — including other members of Congress who all have clearance to discuss them. So not only could he not get straight answers, he couldn’t compare notes with his fellow members of Congress to further his own understanding.”
2. “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails.”President Obama, June 16, 2013, on the Charlie Rose Show
During the same June 16, 2013, interview with Charlie Rose, President Obama said the NSA is not allowed to target U.S. citizens, though Greg Miller reported in his June 30, 2013,Washington Post article, “Misinformation on Classified NSA Programs Includes Statements by Senior U.S. Officials,” that “the NSA has significant latitude to collect and keep the contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency’s court-approved monitoring of a target overseas.” This information is stored, for up to five years, and can be accessed as soon as the FBI gets a National Security Letter, for which there are still no requirements to seek approval or judicial review when sending.
During a March 12, 2013, Senate Intelligence Committee hearing, Sen. Ron Wyden asked DNI Clapper if the NSA collected any type of data on millions of Americans. Clapper said: “No, sir.”
Wyden: “It does not?”
Clapper: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
In a letter to the Senate Intelligence Committee that was released on July 2, 2013, Clapper apologized for his “clearly erroneous” response, saying he issued them because “he was thinking instead of a different aspect of surveillance, the internet content collection of persons NSA believes to be foreigners outside of the United States.” Secrecy News’ Steve Aftergood has made the additional argument that the Senate Intelligence Committee was complicit in the deception. According to Aftergood, Clapper’s “response challenged the Committee to make its own choice either to disclose classified information about the NSA program — in order to rebut and correct the DNI’s answer — or else to acquiesce in the dissemination of false information to the public… As it turned out, the Senate Intelligence Committee made exactly the same choice that DNI Clapper is accused of making. The Committee evidently decided that national security classification trumped any obligation it had to produce an honest and accurate public record. As a result, the Committee itself became complicit in an act of public deception.”
Speaking at a non-profit AFCEA International Cyber Symposium in Baltimore on June 27, 2013, and reported that day on NBC, General Keith Alexander said the U.S. government disrupted 54 terrorist activities using information collected under the controversial “Section 702 of the Foreign Intelligence Surveillance Act” and “Section 215 of the Patriot Act.”
Later, during an October 15, 2013, Senate Judiciary Committee hearing, Alexander confirmed that he lied when saying the NSA’s phone surveillance programs had prevented 54 terrorist “plots or events.” Senate Judiciary Chairman, Sen. Patrick Leahy, emphasized the deception, saying “only 13 of the 54 cases were connected to the United States…that only one or two suspected plots were identified as a result of bulk phone record collection.”
A recent New America Foundation study buoys the argument that these records are not as valuable as the government implied. The report found out of the 225 terrorism cases carried out in the U.S. since 9/11, the program “has had no discernible impact on preventing acts of terrorism,” and that in the “majority of cases, traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.” Outgoing NSA Deputy Director John C. Inglis said in a January 10, 2014, interview with NPR that even though the program hasn’t definitively prevented any attacks, “I’m not going to give that insurance policy up, because it’s a necessary component to cover a seam that I can’t otherwise cover.” Fifty Four turned to thirteen, to zero, to an “insurance policy.”
During a speech at the American Enterprise Institute on July 9, 2012, discussing the NSA’s new Utah Data Center, Clapper said “We don’t hold data on U.S. citizens.” Documents leaked by Edward Snowden reveal that, in reality, the NSA holds on to data of U.S. citizens, only deleting it “after five years.”
6. “Provides the government the same authority in national security investigations to obtain physical records that exits in an ordinary criminal case, through a grand jury subpoena.” Senate Intelligence Chairwoman Sen. Dianne Feinstein speaking on the Senate floor on May 22, 2011
During a speech she delivered on the Senate Floor on May 22, 2011, Senator Dianne Feinstein claimed that the phone records collected under the Business Records Provision of the USA Patriot Act are analogous to information collected during a grand jury subpoena, when in fact secret court orders declassified thanks to Snowden’s leaks show NSA surveillance is much broader than such a subpoena would allow. Feinstein’s statement prompted a group of 26 Senators to send a letter on June 28, 2013, to DNI Clapper for more information on the bulk surveillance programs, citing “[s]tatements from senior officials that the PATRIOT Act authority is ‘analogous to a grand jury subpoena’ …had the effect of misleading the public about how the law was being interpreted and implemented.”
7. “The NSA takes significant care to prevent any abuses and that there is a substantial oversight system in place.” Sen. Dianne Feinstein on August 23, 2013
Sen. Dianne Feinstein (D-California) said in a statement on August 23, 2013, that the “NSA takessignificant care to prevent any abuses and that there is a substantial oversight system in place.” The statement, made after the NSA confirmed to Bloomberg News “that some analysts deliberately ignored restrictions on their authority to spy on Americans,” was clearly contradicted on September 10, 2013, by James Clapper, who posted on the DNI website that “[t]he compliance incidents discussed in these documents stemmed in large part from the complexity of the technology employed in connection with the bulk telephony metadata collection program, interaction of that technology with other NSA systems, and a lack of a shared understanding among various NSA components about how certain aspects of the complex architecture supporting the program functioned. These gaps in understanding led, in turn, to unintentional misrepresentations in the way the collection was described to the FISC. As discussed in the documents, there was no single cause of the incidents and, in fact, a number of successful oversight, management, and technology processes in place operated as designed and uncovered these matters.”
8. “The NSA/CSS work force has executed its national security responsibilities with equal and full respect for civil liberties and privacy.” A June 25, 2013, statement posted by General Keith Alexander to the NSA/CSS workforce.
A 2009 order by the Foreign Intelligence Surveillance Court (FISC), said that, “since the earliest days” of the NSA phone-call spying program’s 2006 inception, the agency has carried out thousands of inquiries on phone numbers without any of the court-ordered screening designed to protect Americans from illegal government surveillance.
In fact, according to a declassified 2001 NSA memo posted by the National Security Archive, the NSA has been pushing to “rethink and reapply” its application of the Fourth Amendment and its interpretation of U.S. citizens’ right to privacy since before 9/11. This was necessary, it argued, to attain a “powerful, permanent presence on a global telecommunications network.” Not to mention, secret court orders declassified only after Snowden’s leaks reveal the government’s repeated misleading of the FISC “fundamentally alters the Court’s understanding of the scope of the collection conducted pursuant to Section 702 and requires careful reexamination of many of the assessments and presumptions underlying its prior approval.”
9. “The government cannot target anyone under the court-approved procedures for this program unless there is an appropriate and documented foreign intelligence purpose for the acquisition, such as for the prevention of terrorism, hostile cyber activities or nuclear proliferation.” Statement made by Attorney General Eric Holder said on June 15, 2013, while speaking to a U.S.-European Union ministerial meeting in Dublin, Ireland.
However, the October 3, 2011, FISC ruling, declassified by the DNI after Snowden’s leaks, clearly shows this isn’t true, stating that “the Court cannot know for certain the exact number of wholly domestic communications acquired through this collection, nor can it know the number of non-target communications acquired or the extent to which those communications are to and from United States persons or persons in the United States.”
10. “Other avenues.” President Obama during his August 9, 2013, Press Conference
During the Q&A period of his August 9, 2013, press conference, Obama said “If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community — for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.” Of course, the protections don’t apply to contractors. The Government Accountability Project, a whistleblower advocacy organization, argued that if whistleblower protections applied to contractors, “Snowden’s disclosures would have stood a greater chance of being addressed effectively from within the organization.”
1. “This is a lockbox with only phone numbers, no names, no addresses in it, we’ve used it sparingly, it is absolutely overseen by the legislature, the judicial branch and the executive branch, has lots of protections built in.”
House Intelligence Committee Chairman Mike Rogers assured CNN’s State of the Union on June 16, 2013, that the NSA’s surveillance program was limited and not invasive in the wake of Edward Snowden’s leaks. Despite Rogers’ comments, the October 2011 FISC ruling chastised the government for misleading the Court about the content swept up in its metadata collection. The Court had been led to believe that the government was only collecting “To/From” information from emails, and chastised the government for belatedly revealing “about” information, saying “[t]he Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government had disclosed a substantial misrepresentation regarding the scope of major collection program.”
2. “Members of Congress have the same privacy protections as all US persons.”
In response to a letter from Senator Bernie Sanders inquiring if the agency was currently spying on, or had ever spied on, elected U.S. officials, the NSA issued a written statement on saying “NSA’s authorities to collect signals intelligence data include procedures that protect the privacy of US persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all US persons. NSA is fully committed to transparency with Congress. Our interaction with Congress has been extensive both before and since the media disclosures began last June.”
In fact, what the NSA meant was that Congress is subject to the same surveillance as “normal” citizens, and the NSA does not consider the Constitutional question of the separation of powers between the executive and legislative branch as it collects surveillance. It’s worth noting that there is precedent for Sen. Sanders’ inquiry. The recently declassified NSA history, American Cryptology during the Cold War, which the Archive won the release of, shows that during the Cold War the NSA monitored the communication of prominent Americans, including the overseas telephone calls and cable traffic of two members of Congress, Sen. Frank Church (D-Idaho) and Sen. Howard Baker (R-Tenn.). The declassified history also showed, as President Obama noted in his speech today, that the NSA monitored “threats” MLK, Muhammad Ali, New York Times journalist Tom Wicker, and veteran Washington Post humor columnist Art Buchwald.
3. Officials have regularly insisted that the NSA only collects metadata in its review, insisting this isn’t enough to violate a person’s privacy rights because metadata is impersonal information. Former CIA Deputy Director Mike Morrell shed light on this misrepresentation of metadata during his February 11, 2014, testimony before the Senate Judiciary Committee, saying “There is quite a bit of content in metadata,” Morrell said. “There’s not a sharp distinction between metadata and content. It’s more of a continuum.”
Despite President Obama’s attempts not to dwell on Edward Snowden or his actions, the public should. Without these leaks, the American public did not have, in Snowden’s words “enough knowledgeabout the nature of modern intelligence-gathering to allow an informed debate.” As Snowden hoped, voters might now be “prepared to put privacy above security.” At the least they can now “make that choice on the basis of information,” rather than the incorrect, unsubstantiated statements of administration and Intelligence Community officials.