NSA 'Leaks' Own Documents Before Senate Committee Grilling; Inadvertently Reveals Its Previous Lies To Congress

from the charge-the-NSA-with-espionage!-the-terrorists-have-our-number-now,-etc.! dept

Perhaps spurred on by the success of the Snowden leaks, the NSA has made its own “me too” effort and declassified a few documents ahead of Senate Judiciary Committee hearing dealing with bulk records collection and FISA oversight.

Given the choice, I’m sure we’d all rather read the unredacted versions of these documents, like those supplied by Ed Snowden, but all the same, it’s refreshing to see an intelligence agency being forced into some minimal transparency.

What the NSA revealed isn’t necessarily a surprise, but there are a few (perhaps unintentional) aspects of the declassified documents that are worth noting.

The first notable aspect, one that simply can’t be ignored, is the statement from James Clapper’s office that accompanied the unveiling.

A statement issued by Clapper’s office said he “has determined that the release of these documents is in the public interest.”

So, when Clapper releases documents, it’s in the “public’s interest.” When Snowden does it, it’s espionage that does “grave and serious damage to national security.”

Granted, the NSA’s releases are heavily redacted (for security!), but if all that’s being sought is so-called “business records/metadata” that have no expectation of privacy, what difference does it make who breaks the news and how much they expose? It’s all above board and, according to the DNI’s general counsel, everyone affected already knows they have no “expectation of privacy” in terms of the data collected. If we follow that logic, there’s no reason these documents should ever have been classified. After all, it’s pretty much the NSA/FBI equivalent of a FOIA request — all public records, all available without a warrant.

Next up: the timing. The NSA released these documents “moments” before the hearing began. This makes the move look like nothing more than throwing the public (and some pesky representatives) a bone so that it can claim to be actively participating in openness, transparency, the “debate,” or whatever when the grilling starts. Sen. Franken took note of the disingenuousness of the selective, last-minute document dump.

Some senators were perturbed that the government waited until moments before the hearing to release the FISA court order and two other documents about the National Security Agency’s bulk collection programs. They suggested that the timing did not give them the opportunity to prepare adequately to question the witnesses about the documents.

“Ad hoc transparency doesn’t engender trust,” Sen. Al Franken (D-Minn.) complained during Wednesday’s hearing.

Third: the released documents reinforce the NSA’s expansive definition of the word “relevant.” In its dictionary, “relevant” means pretty much anything it can collect, store and “interrogate” at its convenience. This is certainly not limited to metadata.

[FISA Judge Roger] Vinson’s order also accepted a key legal claim of the government: that the bulk, ongoing collection of millions of Americans’ phone data was relevant to ongoing terrorism and espionage cases, the standard spelled out under Section 215 of the Patriot Act.

“It can be things that will lead you to things you need,” Cole said, arguing that the actual surveillance occurs not when NSA collects the phone records but when NSA analysts sift through it.

In a technical sense, the NSA is right: surveillance isn’t occurring during the collection. The problem is that the collection is open to search by both agents and algorithms with very little concern given towards the non-relevant data being swept up by these court orders. This logic was pounced on by Sen. Mike Lee.

“I assure you as a recovering lawyer myself there is no context in civil discovery or otherwise to take in information from each and every American who owns a telephone,” senator Mike Lee (Republican, Utah) said. Leahy questioned the “limits under this theory” and wondered why they permit NSA to also collect firearms records, bookmarked Internet searches, medical records or credit card information.

Jameel Jaffer of the ACLU also took a swing at Vinson and Cole’s rationalization:

Jameel Jaffer, the deputy legal director of the ACLU, criticized Vinson’s reasoning. “Saying that the metadata of all Americans’ phone calls, including ones that haven’t happened yet, are ‘relevant’ to an investigation stretches that word beyond any meaning,” Jaffer told the Guardian.

Yes, even future events are “relevant” to terrorist investigations, whether or not they actually occur, or show up during the actual “surveillance” process of interrogating the data haul.

Finally, and this is probably the most important revelation, the documents show definitively that the NSA has lied to Congress about its activities, as noted by Ron Wyden.

“The newly declassified briefing documents released today show that the executive branch repeatedly made inaccurate statements to Congress about the value and effectiveness of the bulk email records collection program that was carried out under the USA PATRIOT Act until 2011. These statements had the effect of misleading members of Congress about the usefulness of this program.

The briefing documents that were provided to Congress in December 2009 and February 2011 clearly stated that both the bulk email records and bulk phone records collection programs were “unique in that they can produce intelligence not otherwise available to NSA.” The 2009 briefing document went on to state that the two programs “provide a vital capability to the Intelligence Community,” and the 2011 briefing document stated that they provided “an important capability.”

Wyden goes on to point out that this “unique” and “important” bulk email collection program was so desperately needed that the NSA shut it down in 2011 for “lack of operational value,” as has now been publicly confirmed. Wyden goes on to question the effectiveness of its still-ongoing “bulk collection” program.

This experience demonstrated that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate. In particular, I continue to be skeptical of claims that the ongoing bulk phone records collection program provides the government with any unique value, as I have not yet seen any evidence to support this claim.

This again lends more credence to the theory that the NSA is collecting data because it can, not because it’s relevant, no matter whose definition you’re using. And there’s no way the NSA can skirt the fact that its grudging nod to transparency is a direct result of Snowden’s leaks, no matter how Clapper and his office try to spin it. The last thing the NSA cares about is the interests of the public.

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Comments on “NSA 'Leaks' Own Documents Before Senate Committee Grilling; Inadvertently Reveals Its Previous Lies To Congress”

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out_of_the_blue says:

Yes, NSA lied publicly -- and all in Congress KNEW it then.

Congress doesn’t care, either. All theater.

This from Naomi Wolf continues to be the most relevant take: “why have a giant Big Brother apparatus spying on us at all times ? unless we know about it?” Same goes for Congress; some may be so doltish as to not grasp that NSA lies to them with impunity.


Whether Snowden is for real or not no longer matters. The purpose of the limited hangout “leak” is obtained: public IS better informed of how much they’re surveilled, and outrage seems limited to Masnicking every little tidbit for page views.

Anonymous Coward says:

Re: Re: Re: Yes, NSA lied publicly -- and all in Congress KNEW it then.

Whatever. Mike has used harsher language to refer to people he dislikes, but that is beside the point.

It just bothers me that this community is becoming so predictable and shallow.

Everything that is mildly annoying is immediately reported. Or worse: anything that is posted by someone considered to be an “enemy” is immediately reported, regardless of topic or content, which leads to pathetic situations where, for example, out_of_the_blue gets the distinction of being both reported and insightful.

Look, he has an opinion. If that bothers you so much, try to engage him in dialogue and sort it out. Like Mike says: fight bad speech with more speech, or something like that. Or haven’t you learned anything from hanging around here?

(Yeah, yeah, I know. I’m AC. My opinion isn’t worth the electrons it is consuming to display it on your screen, but here it is. Deal with it)

Anonymous Coward says:

Re: Re: Re:2 Yes, NSA lied publicly -- and all in Congress KNEW it then.

That’s happened like once. Possibly twice in years.

And theres no way to prove that was even the original OOTB.

Lots of annoying things arne’t reported, only those who completely derail conversations without contributing to the topic at hand (OOTB, AJ). Darryl and Horse don’t get reported as often for example.

Anonymous Coward says:

Re: Re: Re:2 Yes, NSA lied publicly -- and all in Congress KNEW it then.

Everything OOTB posts is reported because that was OOTBs design: stick around long enough and consistently derail threads often enough by reposting the same off-topic information that every post is reported if OOTB is at the top. If that’s not expressly what OOTB was after then why bother using the name every time even though it’s not even an account? There is literally no other reason to do it.

Anonymous Coward says:

Re: Yes, NSA lied publicly -- and all in Congress KNEW it then.

Blue put your tin foil hat back on. If you’re not going to say anything new – don’t bother.

I’ve had enough of you screaming PSY-OP!!!!!!!!! at every opportunity without bothering to go any futher in your explanation, thinking or in responding to people who take the time to read your dribble.

Reported partly because it’s you and partly for “Mansicking” which appears to be your word for running a successful blog.

alternatives() says:

Re: Re: Now Psy-op WAS Yes, NSA lied publicly

The group of people who are likely to believe Snowden and repeat what he’s had to say in as many places as they can are also the kind who have an understanding and dislike of the term Psy-op. OOTB pissing in the well of Techdirt isn’t to poison most people, just to create a negative connection in the population who is anti psy-op.

Of COURSE Snowden is a operation of a psychological nature. He’s trying to create change of some kind by telling people they are being spied on and through such an Operation create Psychological dissidence in the population.

The kind of things being reported go back to Nixon (and before) and were supposed to be corrected with the work product of the Church Commission. And here more than a few of them are being repeated. Obviously the logic and work of the Church Commission didn’t work, so a meaningful attempt at correction will need scholarship into the Church Commission era efforts to try something more effect.

horse with no name says:


“So, when Clapper releases documents, it’s in the “public’s interest.” When Snowden does it, it’s espionage that does “grave and serious damage to national security.” “

You apparently don’t understand the difference between someone who has the right to release them and those who do not.

Statements like that pretty much make everything else you post hard to take.

Anonymous Coward says:

regardless of whether it’s the security forces or the government itself, no one gives a damn or cares in the slightest about the people! all that is worried about is whether anyone is doing something, anything, regardless of being harmful or not, regardless of being tax free or not, that isn’t known about. we are supposed to know nothing of what is happening (and not ask questions!) while whoever wants the knowledge can have every second of our lives on tap!!

R.H. (profile) says:

Re: can the entire congress now be impeached?

You do realize which group is in charge of impeaching federally elected or appointed officials right? Just in case you didn’t know, the House of Representatives has to vote to impeach the individual, then the Senate has a trial, if the Senate comes back with a two-thirds majority of guilty votes, then the individual is removed from office. Therefore, it is Constitutionally impossible to impeach the entirety of Congress since no one is going to vote to have themselves removed from office.

On another point, certain members of Congress did try to, within the framework of the confidentiality documents that they agreed to, inform the people of what was really happening. Senator Wyden comes to mind here. He said that we would be angry when we found out what was being done and it looks like he was right.

Spaceman Spiff (profile) says:

Re: Re: can the entire congress now be impeached?

Time for 2 things:

1. Create a new party – the Restore The Constitution Party
2. Throw the current crop of bums out of office!

Then, do the following:

1. Repeal FISA and all similar laws.
2. Reduce the scope of the Department of Homeland Security – or just remove it altogether (or at least reduce its funding to $1 per year).
3. Pass a law that restricts the President’s ability to use “Executive Orders” to bypass the Congress and Constitution.

And that is just the start…

Hephaestus (profile) says:

Re: Re: Re: can the entire congress now be impeached?

Also add 2 amendments ….

– all laws must be put on display for a period of 1/2 year for public comment before it is finalized and put to a vote. (this need extension)

– Allow the constitutionality of any law to be challenged without cause, by anyone. This way you do not need to prove you were personally harmed or affected by it.

Thats my two cents …

Internet Zen Master (profile) says:

Re: Re: Re:2 can the entire congress now be impeached?

While I get what you’re talking about (secret laws being passed/laws being negotiated behind closed doors without public input [what else is new?]), both of those amendments are terrible ideas.

-You think that Congress is a bunch of lazy incompetents who aren’t doing their jobs now? Think about what would happen if we put laws on display and had to wait for half a year before they could be finalized. Nothing could get done! Granted, most of the stuff Congress actually does these days is usually completely useless, but tying their hands doesn’t help matters.

-Allowing the constitutionality of any law to be challenged by anybody (let’s go with all voting-age “adults” for the sake of argument) just because they can is a absolutely TERRIBLE idea. The court system is already overloaded as it is. Think about what would happen when all the Tea Partiers start popping out of the woodwork and challenging the Affordable Care Act simply because they can. It’s bad enough their representatives among the House Republicans try to gut the damn thing at least twice a day in Congress instead of focusing on actual problems facing the country.

We don’t need the entire Tea Party joining in on that stupidity.

Hephaestus (profile) says:

Re: Re: Re:3 can the entire congress now be impeached?

Both those laws are just what we need.

– displayed for 6 month … It would have prevented FISA, The Patriot Act, and Obamacare. Why did any of them need to be rushed through?

It would also remove a ton of pork from the equation, prevent special interests from slipping things into law, and reign in government abuse.

– Allow the constitutionality of the law to be challenged … Would rarely be used because everything would have been vetted in the 6 month review period.

That doesn’t help with the backlog of currently passed unconstitutional laws that would occur.

Internet Zen Master (profile) says:

Re: Re: Re:4 can the entire congress now be impeached?

I understand your idea for the 6 month period, but logically it just doesn’t make much sense given how much the political landscape can change in six months. A great bill that might have almost unanimous support at the beginning of the review period might have next to zero support by the end. Why? Not because the population doesn’t like it, but because lobbyists from the special interests against that bill will be hammering on those old men every day for six months trying to get them to withdraw their support.

Just to clarify, you’re saying that anyone can challenge the constitutionality of the proposed law, or previous laws that existed prior to the amendment?

Guardian says:


boy you nsa trolls are quite interesting …..the fact is there are far better safer and expedient means ot get your lil terrroists, and let me ask

how much can a free society bear befor ewe all say the fucking following

“ya know what im not gonna live in fear, if i get blown up oh well, at least i died FREE….and with freedoms we fought for”

IF i do not have any rights or freedoms then fuck it i might as well become a terrorist to fight to get them back…see how that works…you are creating far more problems now then solving …and that is the crux of this…

nothing can be hidden forever thus you must take that into any consideration.
RUSSIA btw already knows everything about the 5 nation surveillance network they had a spy directly accessing it from canada for years….
nothing new for russia…so get over him being there or that your NON allies don’t know.

THAT they have kept the secret tells you even more…
that new programs are being launched as we speak to replace everything is even more scary….

that’s right all the things you see and here have replacements.

vastrightwing (profile) says:


If the NSA is supposed to be collecting intelligence on terrorist activities, why then isn’t the data being used for such purposes? The single minded appliance nature of Prism is too much for me to bear. Millions of lives are lost each year because this data is locked behind a shrouded wall of secrecy and used for a single purpose.

Is this data being used to find potential thieves? Potential rapists? How about infringers? It seems this data would be a huge boon to the IP crowd. They could find all the infringers at once. They know exactly who is downloading porn, movies, MP3s and more, yet they do nothing.

Why can’t this data be used in court cases to determine where someone was to link them to a crime scene?

Law enforcement could use this data to find reckless speeders while they speed using the cell tower data in real time. This is magical stuff here! Why? Why can’t this data be used for such noble purposes? Imagine the Spain train wreck could have been avoided simply by noting that the train driver’s cell phone was travelling at too high a speed for its location.

How about civil matters? If my hard disk crashes and I lose all my emails, why can’t I recover it using the data stored in the facilities we bought and paid for with our tax dollars? If I forget my password in my excel document, why can’t I request a decrypted copy from the NSA?

Opportunity missed. Here we have enormous potential for good use of the infrastructure, yet its use is highly classified, denied and abused. I say rather than shut down the program, let’s re-purpose its task for the good of the country. Let’s embrace the ultimate cloud storage and powerful search capability that Google can only dream of. I’m excited just thinking of the possibility!

Guardian says:

@10, @11

@10 it is….
the nsa agent at a unniversity used the phrase “customers”
which caught everyone on earth by surprise..ergo selling the data to 3rd parties OR is the nsa a private business?

go figure


no really…and dont vote dem / gop anymore…they dont serve people they serve machines

Anonymous Coward says:

“the documents show definitively that the NSA has lied to Congress about its activities, as noted by Ron Wyden.”

Wyden said the executive branch made “inaccurate” statements that “had the effect of misleading Congress.”

Any good NSA, DOJ, etc. flack will point out that making inaccurate statements that mislead someone isn’t lying. They could have just misstated or have had a different interpretation of the meaning words or been misquoted or misheard or…

Someone should FOIA the NSA’s dictionary.

Anonymous Coward says:

The fourth amendment is specifically purposed to prevent the exact legal maneuvering, vocabulary bending, lip service “debate” that we are accepting here.

The Fourth Amendment is based in a historical context; it is clear and specific.

It is not reasonable for the government to dragnet data on the lives and habits of citizens suspected of no crime, even more so sans warrant.

How the people in charge of these programs do not see how quickly what they have created is going to get out of hands is beyond me.

gorehound (profile) says:

To bad that most Americans are just a bunch of Mass Consumer Sheep who will drink heartily of the Fear Mongering………..hear a lot of people give the ole lame remark of If I am Honest then what do I have to Worry about.

Stupid ignorant people ! Sell out our Future is what their lameness does.
Politicians………so damn corrupted.Most of them probably already know what goes on and now we can watch them all go one way or the other so they can retain their power and greedy ways.

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