National Security Bosses Still Claiming It Would Violate National Security To Tell You If They Violate Your Privacy

from the whose-security-are-we-talking-about? dept

Via Julian Sanchez we learn that Senator Ron Wyden has released some updated responses from our national intelligence bosses concerning the questions that Wyden (and a few other Senators) have been asking for years. It's been pretty clear that a "secret" interpretation under the FISA Amendments Act (related to the Patriot Act) has meant that the NSA is scooping up tons of American communications, even as its mandate is that it only cover foreign intelligence—and Wyden has been pushing for more information.

It appears that there are some pretty significant loopholes that have allowed the NSA to go a lot further. For example, it isn't allowed to collect information on Americans if "it's known at the time of acquisition" that the communications are domestic. So as long as it doesn't look when it's acquiring (but does look later) there's no problem. Similarly, it appears that the secret interpretation also means as long as the target of the investigation being conducted -- and not necessarily the person whose communication is being intercepted -- is a foreign terrorist, the communication is fair game. That is, so long as the NSA can claim that they're collecting the information to go after Al Qaeda, they can claim that it's valid to intercept almost anything, as it "targets" foreign communications, even if it's collecting purely domestic communications. The key to all of this is reports that the NSA is likely collecting a massive chunk of information, possibly including pretty much all mobile phone records. Senator Wyden keeps asking about how many Americans have had their data collected, and what interpretation the NSA is using. These seem like completely valid questions, but the NSA and James Clapper, the director of national intelligence, keep refusing to answer.

After the NSA responded to yet another request from Wyden for answers to these questions, Wyden once again demanded answers from James Clapper, the Director of National Security. Wyden, along with Senators Jeff Merkeley, Tom Udall and Mark Udall, sent a letter simply asking Clapper to respond to four simple questions -- many of which could be answered with a simple yes or no:
First, we asked if any entities have made any estimates -- even imprecise estimates -- about how many US cmmunications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please provide an answer. We would expect this answer to be unclassified, but if you disagree please provide your reasons for keeping this answer secret.

Second, we asked if it was possible to estimate the order of magnitude of this number. (For example, is the number of US communications collected under section 702 closer to 100. or 100.000. or 100 million?) You did not answer this question directly, however the Director of the NSA has made public statements that appear to estimate this order of magnitude. Specifically, the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false." Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than "millions or hundreds of millions." Since the NSA Director made this statement publicly, we would expect this answer to be unclassified as well.

Third, we asked if any wholly domestic American communications had been collected under section 702 authorities. Your response was classified. We do not understand how simply stating whether any wholly domestic communications have been collected under section 702 authorities would have any impact at all on US national security interests. if you believe that it would, please explain why. And if you agree that it would not, please provide an unclassified answer to this question.

Fourth, we noted that the FISA Amendments Act does not prohibit searching through communications collected under section 702 to find the communications of particular Americans, and asked if the US government has ever attempted to search for the communications of a specific American in this way without a warrant or emergency authorization. Your response was classified. We do not understand how providing a 'yes' or 'no' answer to this question would impact US national security interests in any way, and we ask that you provide an unclassified response.
They further note, via a footnote, that the idea that it's reasonable to answer these questions in a classified manner because Senators can read the classified answers makes little sense concerning the important debate on renewing the FISA Amendments Act, since the key staffers who Senators hire to understand this stuff probably can't read those classified responses.
We note that classifying these answers does not just keep them secret from the public. Most members of Congress including eleven of the thirteen senators that signed our letter - do not have any staff who are cleared to read your attachment, which will make it extremely difficult for most members to review and understand these" answers.
The whole thing is ridiculous... and making it even more ridiculous is the response sent by Clapper which basically ignores the questions and says that he's happy to meet directly with any Senator in a classified setting to answer questions:
We cannot provide additional answers to your questions in an unclassified format. Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these authorities and answer any questions you might have.
Of course, that defeats the point of letting the public know about how these laws are being interpreted and how much of their communications are being collected by the NSA. Furthermore, it fails to take into account the footnoted point that the key staffers who help elected officials understand this stuff may not be allowed to learn about these answers. Clapper's letter is even more ridiculous when he explains the justifications for not answering the questions. Basically, he gives a blanket "national security" answer, claiming that he's "balancing" the issues of security and public debate:
I also share your interest in an informed public debate on the government's use of its intelligence collection authorities. As you know, it is my responsibility under the law to protect critical intelligence activities from public disclosure in order to safeguard sensitive sources and methods, including the government's acquisition of vital foreign intelligence information through FAA authorities. Our earlier publicly available letters, including my August 24, 2012 unclassified letter (with classified annex) responding to your July 26, 2012 inquiry, and General Alexander's November 13, 2012 letter, properly balance protecting classified information and informing the public of the manner in which FAA is implemented.
That is, to put it simply: hogwash. As the original letter makes clear, there is no reason that national security is threatened by answering the basic questions being asked. Saying whether or not an estimate has been made on how many Americans have had their communications intercepted (not even saying what that number is) is not going to violate national security. As for the NSA letter from General Alexander that Clapper mentions, Wyden has released that too and it's equally ridiculous -- again, insisting that the answers to such basic questions need to be classified.

In the end, it looks like the NSA and the National Intelligence Director aren't so interested in protecting national security with these non-answers, but their own job security. Claiming that such information needs to be kept secret may allow them to keep quiet how they've been using unique interpretations of the law to collect American citizens' communications, even as Congress pretends that the bill is being interpreted as written, whereby domestic communications are off limits. The whole thing has become a joke, and shows what intelligence officials will do when there's no real oversight, and they can spy on citizens at will under a flimsy secret interpretation of the law that they never have to reveal.

The government spying on Americans using "secret interpretations" of laws, where intelligence officials get to play word games, rather than answer straight questions from Congress? That's not the way these things are supposed to work.






Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    F!, Dec 11th, 2012 @ 11:40am

    to state the obvious

    If they've done nothing wrong, what have they got to hide?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 11:49am

    "National Security Bosses Still Claiming It Would Violate National Security To Tell You If They Violate Your Privacy"

    This situation is classified...as stupid.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 11:55am

    typical double-talk. they know what they are doing is wrong but daren't admit to it for fear of the consequences, not from the danger to National Security but the danger of the public getting together to sue them. however, think of the money that's being saved by the spying being done on people in the US rather than having to spend extra trying to get the goods on people in other countries!

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 12:00pm

    Re: to state the obvious

    Unless you are GCSB in New Zealand being ruled by the court there that they have to give evidence of Illegal spying of Dotcom.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 12:01pm

    *pats the public on the head* you run along now, and don't worry your pretty little self while the grown-ups decide what's good for you.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 12:04pm

    Re:

    More like they dont want to have to go through the embarassment of being publically roasted and shafted by the public for their illegal spying on them. I doubt they will be sued as the government are exempt from being sued unless they allow it and that I guess they will never allow themselves to be sued.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Another AC, Dec 11th, 2012 @ 12:09pm

    Re:

    Oh SNAP!

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 12:14pm

    Telling you about violating your privacy violates national security's privacy

    so ppppbbbbbfft to you, taxpayers.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    That One Guy (profile), Dec 11th, 2012 @ 12:20pm

    Re: to state the obvious

    Beat me to it.

    I was going to note that if the answer to any of the questions was 'no', they would have had no reason not to say so. Given they immediately went for 'it's classified' however, the default assumption then goes to 'yes'.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 12:31pm

    Re: to state the obvious

    Any criticism of the government as it might mean you are a terrorist, in which case watch out for the drone if you visit a foreign country.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    silverscarcat (profile), Dec 11th, 2012 @ 12:35pm

    Re: to state the obvious

    Exactly!

    It's not like they've got any political, religious, sexual orientation, or any other reasons to want to keep stuff hidden, so, why not let us see what they're doing?

    Unless it's illegal!

    Quick! We must raid the NSA headquarters claiming copyright infringement!

    ...

    What? It worked on Dotcom after all.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 1:55pm

    Wyden's used to hearing half-truths

    Specifically, the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false." Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than "millions or hundreds of millions."

    I never would have parsed the director's answer as possibly meaning that there are more than hundreds of millions. How do people keep there jobs when they won't give a senator a straight answer?

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    anon, Dec 11th, 2012 @ 2:11pm

    In the same simple terms

    It is an invasion of my privacy for the government to know how much I am paid every month, that is my own information that only I have a right to and if they want taxes they need to trust me when I submit my taxes, thank you, this makes a lot of sense,....not!!!!!

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 3:29pm

    Maybe just maybe since the good director, James Clapper can not give straight answers, it is time to save money on the budget and terminate the FISA Amendments Act.

    Since the Repubs are so hell bent on saving money on the budget after the Bush 'deficits don't matter' era, they have been given a rare opportunity to identify a place where the budget can be cut since they have so much troubles finding a place outside of the social programs that could receive their attentions, financial wise.

    I'm sure Sen. Wyden would appreciate the rare bi-partisan effort.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 3:30pm

    Re: to state the obvious

    you forgot /s

    Everyone has broken some law rule regulation with the force of law there are to many to truly know.
    Add to this the collection of everything you do and or have done into one giant searchable data base.
    Look what the state did to two Generals just last month.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Bergman (profile), Dec 11th, 2012 @ 3:58pm

    The purpose of keeping national secrets is to prevent the enemies of the nation from learning things they might use to harm the government or the people of the nation.

    But...the only people who could benefit from knowing that part of the government is breaking the law is...the government itself, and The People who they supposedly represent. The only people that could use knowledge of lawbreaking against the lawbreakers are...The People.

    Is the government truly asserting that The People are the enemies of the government? Doesn't that fit one of the definitions of treason?

    18USC2381 says "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 5:06pm

    Re:

    And what are the taxpayers, the people, going to do about it? Just what they've been doing: nothing. They'll keep on swilling their beer, watching their NASCAR, waving their flags, listening to some flavor-of-the-month rapper, and filling their minds with crap rather than educate themselves about what's really going on.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 5:09pm

    Re:

    Fortunately I owe no allegiance to the United States.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 5:48pm

    And the answer is....

    How can answering a yes or no question affect national security? Simple.
    If they answer no, they would be lying and it's illegal to lie to congress, so they'd be screwed and that would limit their ability to spy on us.
    If they answer yes, then the citizens would be up-in-arms about it, demanding some hides, and that would affect their ability spy on us.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    F!, Dec 11th, 2012 @ 6:31pm

    Re: Re: to state the obvious

    You're right I forgot the /sarcasm tag. Oops.

    However, I actually think it's a valid question when it comes to gov't transparency. The "super secret security stuff" argument is so over-used, and obviously bullshit so often it's not funny.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 6:39pm

    You're right. This isn't the way a democracy is supposed to work. In a democracy, government officials are supposed to be held accountable by a constitution in judicial oversight. The NSA and other parts of government are clearly violating American citizen's 4th Amendment right by performing illegal searches and seizures.

    Because the US Government is overstepping the constitution, the USA is on the verge of becoming an Authoritarian Dictatorship. Actually, it could be argued that we're already there. The National Security Authorization Act of 2012 also states that the president has the authority to detain US Citizens, without due process or a trail, indefinitely. This violates the 5th and 14th Amendments of the constitution. Protects against abuse of government authority in a legal procedure. and the right to a speedy and fair trial.

    According to most scholars definition of an Authoritarian Dictatorship, the United States has already become an Authoritarian regime by side lining and ignoring the Constitution of the United States.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    lucidrenegade (profile), Dec 11th, 2012 @ 6:42pm

    So... is there anything Wyden can actually do to force these questions to be answered?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    F!, Dec 11th, 2012 @ 8:08pm

    Re:

    "... the USA is on the verge of becoming an Authoritarian Dictatorship. Actually, it could be argued that we're already there."

    A perfect opportunity to trot out this old gem for folks who may not have read it yet, also often referred to as "The 14 Defining Characteristics of Fascism":
    http://www.secularhumanism.org/library/fi/britt_23_2.htm

    Looks like the USA is pretty much working as hard as they can to get there. Numbers 6, 8, and 14 could be argued, but the rest are dead on.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Dec 11th, 2012 @ 8:38pm

    Translation

    I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these authorities and answer any questions you might have.

    Translation: We would gladly meet with you on a densely wooded dirt road in the middle of nowhere to discuss this with you.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    The Real Michael, Dec 12th, 2012 @ 6:38am

    You could stand on a pedestal and shout, "Arrest the criminals within the NSA! Spying on American people is a DIRECT VIOLATION OF THE CONSTITUTION!" and it still wouldn't make any difference because they're going to continue doing it anyway. The thing is, the people within the NSA know full and well that what they're doing is tantamount to treason against their fellow citizens yet continue doing it. Nobody is held accountable, there are no checks and balances, no oversight, nada.

    I'm glad that Wyden and others are asking important questions but doubt that they'll receive any real answers. The very fact that the NSA can blatantly ignore Senators is disturbing enough.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Mega1987 (profile), Dec 12th, 2012 @ 11:04am

    Huh?

    How in the world a normal citizen of the US got ANY vital information of the US' security system?

    Military manpower and Firepower?

    Latest Military toys?(Aside from those documentaries... :P)

    The every freaking password of every military department used?

    Every secret agent who is hiding in the shadows, doing cold and shadow wars?

    These guys are pretty much declared that everyone who's NOT within the political and military structure of the USA is a potential Terrorist/Spy...

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    kitsune361, Dec 12th, 2012 @ 12:15pm

    Re:

    Not really. He can subpoena Clapper to testify under oath, it'd make a good show, but unless he's willing to pull the trigger on a contempt of Congress charge... Good luck getting the votes for that.

    There's also always the power of a filibusterer. The FISA renewal bill could just die in the Senate. Of course the Military-Industrial-Security Complex can probably lobby enough votes to overcome Wyden's hold on the bill.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This