NSA's Stellar Wind Program Was Almost Completely Useless, Hidden From FISA Court By NSA And FBI

from the lies-on-top-of-lies-on-top-of-legal-quackery dept

A huge report (747 pages) on the NSA's Stellar Wind program has been turned over to Charlie Savage of the New York Times after a successful FOIA lawsuit. Stellar Wind has its basis in an order issued by George W. Bush shortly after the 9/11 attacks. Not an executive order, per se, but Bush basically telling the NSA that it was OK to start collecting email and phone metadata, as well as warrantlessly tap international calls into and out of the United States.

The extensive detailing of the program's history contains some rather surprising elements. While much of it remains redacted, there's still enough exposed that indicates the program was like many others the NSA has pursued: expansive, intrusive, done without oversight… and ultimately mostly useless.

In 2004, the F.B.I. looked at a sampling of all the tips to see how many had made a “significant contribution” to identifying a terrorist, deporting a terrorism suspect, or developing a confidential informant about terrorists.

Just 1.2 percent of the tips from 2001 to 2004 had made such a contribution. Two years later, the F.B.I. reviewed all the leads from the warrantless wiretapping part of Stellarwind between August 2004 and January 2006. None had proved useful.
Not that this lack of results kept those writing the report from celebrating the "successes" the FBI apparently couldn't find. Of course, there's nothing to be gleaned from this information because those have been completely redacted.

What is clear is that the program quite possibly did more harm than good. The NSA was sweeping up an unprecedented amount of information but -- because of its secret origins -- was mostly unable to share with the CIA or FBI. In particular, the warrantless wiretapping the NSA engaged in couldn't be passed on to the FBI until leaked details finally forced legislators to act on this apparent breach of Americans' privacy -- which they did by codifying the NSA's actions, making them perfectly -- and retroactively -- legal. Even then, it still posed problems for the FBI.
F.B.I. agents were asked to scrutinize phone numbers deemed suspicious because of information from the program. But the agents were not told why the numbers had been deemed suspicious, only “not to use the information in legal or judicial proceedings.”

That made some agents uncomfortable, and it was not clear how such mysterious leads fit into their rules for investigations.
The FBI, which is now heavily engaged in the management of parallel construction for law enforcement Stingray usage, found itself in the awkward position of disguising the origin of intelligence it hadn't specifically asked for, as well as having the NSA tell it what it could and couldn't say in front of judges. This would include applications made to the FISA court.
We asked [DOJ intelligence counsel James] Baker whether he thought the restrictions on the use of Stellar Wind-derived leads disseminated to field offices, as described above, were sufficient to guard against including Stellar Wind information in FISA applications. Baker stated that his experience with FBI record-keeping practices did not give him a high degree of confidence that such separation could be consistently maintained. In addition, Baker believed that the nature of FBI international terrorism investigations would make it difficult to track Stellar Wind-derived information. According the FBI OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications.
Rather than disconnect the FBI from the influx of questionably-obtained NSA "tips," the administration worked with the DOJ to make it easier for the agency to find something to do with intelligence passed on by the NSA.
The Justice Department created the new type of investigation, initially called a “threat assessment,” which could be opened with lower-grade tips. Agents now use them tens of thousands of times a year.
Questionable "intel" leads to even more questionable not-quite-investigations. As can be seen by the FBI's own conclusions, about the only thing Stellar Wind did for it was increase the number of man hours wasted running down the NSA's "leads."

As for the FISA court, there's a good reason it's been perceived as a "rubber stamp" for NSA requests. Bush's secret executive authorizations were disclosed to FISA Judge Royce Lamberth by Bush himself. Further orders for these collections were routed only through Lamberth, and his successor, Colleen Kollar-Kotelly.

This belated admission (which did nothing to halt the collections) was prompted by none other than James Baker, who stumbled across a clumsy attempt at parallel construction.
[Baker] came across “strange, unattributed” language in an application for an ordinary surveillance warrant and figured it out, then insisted on telling Judge Lamberth.
Another FISA court judge did discover the NSA's Stellar Wind program, although to him it appeared to be an extensive string of telephone metadata abuses by the NSA. Judge Reggie Walton threatened to shut down the Section 215 collection entirely in 2009, concerned about the agency's deliberate misleading of the court on the program's inner workings and its extent. As Marcy Wheeler points out, these weren't technically "abuses." They were just Stellar Wind collections that failed to be properly obscured when placed in front of a FISA judge other than Colleen Kollar-Kotelly.
I have long scoffed at the claim that the phone dragnet violations discovered in 2009 were accidental. It has always been clear they were, instead, features of Stellar Wind that NSA simply never turned off, even though they violated the FISC orders on it.

The Stellar Wind IG Report liberated by Charlie Savage confirms that.

It describes that numbers were put on an alert list and automatically chained.

"An automated process was created to alert and automatically chain new and potential reportable telephone numbers using what was called an “alert list.” Telephone numbers on the alert list were automatically run against incoming metadata to look for contacts. (PDF 31)"

This was precisely the substance of the violations admitted in 2009.
Kollar-Kotelly, on the other hand, was much more indulgent when responding to NSA requests, allowing the agency to recast the low bar of pen register orders as justifying bulk email metadata collections obtained through Stellar Wind -- something she did a few years before the NSA allowed Stellar Wind to bleed into its Section 215 collections.

The documents don't restore any faith in the "oversight" of the NSA's activities. Instead, it shows two presidents acting in secrecy to permit the surveillance of American citizens and involved agencies covering it up with parallel construction, intense secrecy, manipulation of oversight bodies and several very questionable legal theories.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, fbi, nsa, parallel construction, stellar wind, surveillance

Reader Comments

Subscribe: RSS

View by: Time | Thread

  • icon
    That One Guy (profile), 27 Apr 2015 @ 1:01pm

    Impressively bad

    Even those using the program knew it was bad enough that they didn't inform the rubber stamp 'court', figuring that even they might balk at the paper-thin 'justifications'.

    When even a hand-picked pack of Yes-'judges' aren't likely to buy your reasoning, you know it's not on solid legal ground.

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

    • identicon
      Anonymous Coward, 27 Apr 2015 @ 1:30pm

      Re: Impressively bad

      The responsible in NSA who "shared" information with FBI would surely know how morally wrong it was and the people preparing papers for FISA would know how legally questionable it was. Calling it "Pizza cases" because of the 99% of cases being such is not showing much internal confidence in it.

      That the program could continue with as much doubt about its legaility is quite a testament to how extremely lackluster the oversight systems are and how corrupt the FISA court is morally if not legally. A court should be independent of lawmakers, according to the separation of power we normally adhere to and the court should obtain enough evidence to make an informed judgement. For FISA, it is clear that both of these have been compromised, making it relevant to question its function.

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

  • icon
    Paul Renault (profile), 27 Apr 2015 @ 1:49pm

    Success stories redacted?

    FTL: "Still, the report includes several redacted paragraphs describing “success” cases."

    Here, lemme unredact those paragraphs:

    Ungracefully due hawk prior responsibly dear more more about hello alas much cracked weasel rubbed one messy meant far some fallible responsibly far crud resplendently bandicoot saddled took because one tough drooled however however majestic up vague far built arousing disbanded across less considerably.

    Gosh this exquisite wow jeepers said darn and fired near much goodness amongst dishonestly a beaver dear instead hello that on much out yet alas and grunted less accordingly seagull chameleon oversold far rat.

    Hatchet wore less far forthright bawdy gosh well less less far consoled this and chameleon gosh following groaned inadvertent and yet and notwithstanding together the across moaned much komodo clearly far that certainly.

    Consistent iguana differently caterpillar less stared tamarin away hello bluebird piranha ostrich pill creepy the less wore more this tuneful and much some sharply jeez hey.

    Avoidably perilous far a more ancient removed toward out heard excepting wow fiendish hound however because unjustifiably concentric and much one but during alas thirstily wrote pouted underneath wasp after.

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

    • identicon
      Pragmatic, 28 Apr 2015 @ 6:23am

      Re: Success stories redacted?

      @ Paul Renault, encryption aids terrorists, you know. A senior British law enforcement official says so. :P

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

  • icon
    Blackfiredragon13 (profile), 27 Apr 2015 @ 1:55pm

    This confused me repeatedly, until I realized I was misreading "NSA" with my brain reading it as "NASA".

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

  • identicon
    Anonymous Coward, 27 Apr 2015 @ 1:59pm

    I'm sure the FISA Court will now huff and puff...and continue to rubber-stamp their mass surveillance requests.

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

  • icon
    Chris ODonnell (profile), 27 Apr 2015 @ 6:04pm

    The NSA: expansive, intrusive, done without oversight… and ultimately mostly useless.

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

  • identicon
    pronky person, 28 Apr 2015 @ 7:02am

    How Long Do We Have To Put Up With This American Corruption

    How long, how long ong ong ong ong, to day, how long do we have to wait today, Sunday Bloody Sunday.

    Sunday Bloody Sunday.

    Coming to American fools soon.

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

  • identicon
    Reality bites, 28 Apr 2015 @ 8:56am

    NSA useless... they keep a lot of the mentally disabled off the street.

    All the 3 letter agencies do mankind a great service, they employ the unemployable and feed & clothe the mentally inept.

    The one common thing amongst all the rogue agencies, the distinct lack of anything even resembling a success story.
    The NSA haven't prevented even one attack anywhere in the world, the FBI can only stop the plots they start. The CIA topple foreign dictators only to replace them with chaos and civil war.

    The USA Feral Gov has a 100% success rate at failure.

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

  • icon
    gsosbee (profile), 23 May 2015 @ 10:05pm

    fbi, Gestapo

    More filth in the fbi than meets the eye.

    The fbi is to the United States of America the same subhuman force that the Gestapo was to Nazi Germany.
    Gestapo, aka, Geheime Staatspolizei, "Secret State Police" was the official secret police of Nazi Germany and German-occupied Europe.

    The fbi and the cia now secretly occupy the USA and seek to control the world through inhumane, murderous *methods and, as they are maniacal serial killers, torturers and mass murderers, they must be **put out of business.

    More papers on topic on behalf of Everyman of conscience who yet has good will toward fellow man:


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

  • identicon
    Stussy, 19 Oct 2016 @ 8:37pm

    NSA Success

    They succeed in keeping their jobs.
    They succeed in growing the surveillance industry, which convinces them they need the products they develop.
    They succeed in obtaining taxpayer funding to buy new said products.
    They succeed in fear-mongering to convince us we need them.
    They succeed in legalizing their illegal behavior.
    They succeed in data collection.

    We should all wish to be as successful as NSA.

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

  • identicon
    fredfredburger, 25 Mar 2017 @ 9:52am

    phoney doc

    sorry but this release at this time is just a little too timely. I would tend not to trust this that much. I liken it to the get out of jail free card for the last admin.

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

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)


Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Sponsored Promotion
Public Money, Public Code - Sign The Open Letter at publiccode.eu
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.