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.

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Comments on “National Security Bosses Still Claiming It Would Violate National Security To Tell You If They Violate Your Privacy”

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silverscarcat says:

Re: to state the obvious


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.

Anonymous Coward says:

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!

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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?

Anonymous Coward says:

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.

Bergman (profile) says:

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.”

Anonymous Coward says:

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.

Anonymous Coward says:

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.

F! says:

Re: 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”:

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.

kitsune361 says:

Re: 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.

The Real Michael says:

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.

Mega1987 (profile) says:


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…

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