Senator Wyden Wants To Know How Many Times Americans Have Been Targeted By Executive Order 12333

from the am-I-free-to-know-am-I-free-to-know-am-I-free-to-know-am-I-free-to-know-am-I-fre dept

That buzzing noise that never seems to leave the Intelligence Community's ears is Sen. Ron Wyden. Wyden's questions -- often unanswered -- are dog whistles for privacy advocates but ear-bleeding tinnitus for agency officials. Persistence is key in Congressional oversight and few are better at it than Wyden is.

For years, Wyden has been asking how many Americans have been hauled in by the NSA's Section 702 dragnet. And for years, the NSA and ODNI have sidestepped the question. The surveillance bosses got close to returning an answer -- right before they announced they were shutting down the collection that netted the most Americans.

Right before Trump was elected, James Clapper finally said he'd cough up the numbers. But with the regime change, the promise is no longer a promise. The NSA may try to keep this buried, using time and distance from the abruptly-abandoned "about" collection to stiff-arm additional requests for domestic surveillance data.

Ever persistent, Wyden has returned with another set of questions [PDF] regarding NSA surveillance. This one pertains to the least-discussed surveillance authorization and the one almost everyone -- including members of oversight committees -- knows nearly nothing about: Executive Order 12333.

Like Section 702, there's a good probability intelligence gathered under this authority is being used by domestic agencies. Backdoor searches of NSA intel have been unofficial common knowledge for years now, so there's very little reason to believe the NSA's most mysterious authority doesn't have its own built-in peepholes for the FBI and other federal agencies.

Wyden is asking for details on this authority, specifically the number of times it has been used to surveil Americans. As he points out, the order allows the deliberate targeting of American citizens with the Attorney General's approval.

Please provide the following information:

1. How many times, in each of the calendar years 2011-2016, has the Attorney General provided this approval?

2. Can the Intelligence Community conduct these searches "for the purpose of targeting a US. person or a person in the United States" without an individual warrant?

3. What limitations and approval requirements would apply to searches for communications that are reasonably likely to be to, from, or about a US. person or a person located in the United States if the purpose of the search is not to "target" that person?

That's the "what." Here's the "why:"

Concerns about warrantless "backdoor" searches for information about Americans are among the reasons I have repeatedly asked the Intelligence Community to publish an estimate of the number of Americans whose communications have been collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Concerns about these searches under Section 702 are also why the Intelligence Community now publishes data on the number of these searches, with the notable exception of searches conducted by the FBI.

Executive Order 12333 poses similar, if not greater concerns, given the lack of public awareness of the breadth of that collection, extremely limited oversight, and the vagueness of the procedures governing collection and use. For these reasons, I believe the public has the right both to clarity with regard to those procedures and data related to the frequency with which Americans and individuals in the United States are the subject of these searches.

No sense holding your breath. As much as I appreciate Wyden's effort, the current administration firmly believes surveillance might makes right. The Intelligence Community has been so emboldened by the administration's lack of concern for civil liberties it's already asked to have the "about" collection -- which it shut down voluntarily so it could finally get 702 orders approved by the FISA court -- turned back on.

If any answers do appear, expect them to be vague and deliberately uninteresting. But at this point, it's probably less disappointing to just not expect them at all.


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  • icon
    TechDescartes (profile), 24 Jul 2017 @ 12:12pm

    Show Your Work

    Let's see.

    If you take the number of times we decided to ask for approval, subtract the number of times we decided not to ask approval, add the times we had to get senior-level approval ... hang on.

    (Carry the 2, no, wait, that's a 1. OK, move to the hundreds place, carry again. Once more, and ... done.)

    OK, got it: 0

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

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 12:14pm

    He'd have more luck getting answers from a potato.

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

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 12:18pm

    my calculations indicate

    325,510,152 +1 every 8 seconds from now.

    yep, sounds about right.

    https://www.census.gov/popclock/

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

  • icon
    Bergman (profile), 24 Jul 2017 @ 12:41pm

    Given that executive orders don't create new laws

    How exactly does a President order someone to violate the law via an executive order without committing a high crime or misdemeanor -- and beyond that, a conspiracy to violate the law that runs all the way down the chain of command?

    Supposedly, there is a legal duty to disobey illegal orders, and military personnel can be dishonorably discharged for obeying orders they knew or should reasonably have known were illegal.

    While it's true that the King/Queen of England is above the law and those acting on a sovereign monarch's direct orders are also exempt from the law, the President of the United States is not a sovereign monarch -- our entire system was set up to prevent exactly that!

    So where does this weird idea that anything the President does is legal come from?

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

    • identicon
      Anonymous Coward, 24 Jul 2017 @ 12:56pm

      Re: Given that executive orders don't create new laws

      "So where does this weird idea that anything the President does is legal come from?"

      It comes from people who do not understand the constitution.

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

      • identicon
        Anonymous Coward, 24 Jul 2017 @ 1:02pm

        Re: Re: Given that executive orders don't create new laws

        Which happens to be the VAST majority of citizens AND the very members of the government that SWEAR to uphold the very thing they immediately wipe their ass with.

        You can't make this shit up.
        Now I am understanding why Hollywood likes to break the laws of physics in all of their TV shows... they take all of their queues from Government.

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

        • identicon
          Anonymous Coward, 24 Jul 2017 @ 2:53pm

          Re: Re: Re: Given that executive orders don't create new laws

          Well, at least The Simpsons obeys the laws of thermodynamics.

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

      • icon
        orbitalinsertion (profile), 24 Jul 2017 @ 2:25pm

        Re: Re: Given that executive orders don't create new laws

        It comes from people who are paid to misinterpret the Constitution. And we are lucky if we ever get to see the convoluted reasoning, as it is usually classified for these types of things. There are other ways this happens too, such as Congress granting the Presidency powers it has no authority to grant.

        Of course, this is not just in terms of the President. Various bits of government seem to like to "legalize", sometimes retroactively, all manners of abusive behavior, if they cannot simply bury or deny it.

        Actually, you can watch any human beings, or grouping thereof, do exactly the same things on different scales in different situations.

        Which is pretty much why the Constitution has been mostly a myth for many people since the ink dried on the page. Most everyone cherry-picks what they want of it and gives it their own interpretation, if they bother to think of it at all.

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

    • identicon
      Thad, 24 Jul 2017 @ 1:04pm

      Re: Given that executive orders don't create new laws

      They've found a loophole and a catch-22: nobody can prove that any laws are being violated, because nobody can prove they have standing to sue, because the identities of the people being spied on are classified.

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

      • identicon
        Anonymous Coward, 24 Jul 2017 @ 6:05pm

        Re: Re: Given that executive orders don't create new laws

        Kind of like it's okay to spit in people's food as long as they don't know about it.

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

    • icon
      Ninja (profile), 24 Jul 2017 @ 1:26pm

      Re: Given that executive orders don't create new laws

      Not only that but the entire population should be up in arms when they started using secret interpretations of whatever law there is and wouldn't even let the legislative take a look. Seriously?

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

      • identicon
        Anonymous Coward, 24 Jul 2017 @ 1:44pm

        Re: Re: Given that executive orders don't create new laws

        We don't have to be up in arms, we just need to stop playing the blame the "other party" game that we have been duped into participating in.

        I take it that you will be avoiding the two major parties next election? If not...

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

        • icon
          Ninja (profile), 24 Jul 2017 @ 2:05pm

          Re: Re: Re: Given that executive orders don't create new laws

          If I voted in the US I could *try* to avoid both parties. But there aren't alternatives unless there's something beyond R's and D's I'm missing. Still, there are good names in the Democrats such as Wyden and I would probably vote Sanders. I"d probably have voted Clinton with a lot of heart pain just to avoid the current dipshit (which would be moot because he won with minus 3 million votes). Not that we are much better here with most parties with their noses deep under the corruption quagmire.

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

          • identicon
            Thad, 24 Jul 2017 @ 4:14pm

            Re: Re: Re: Re: Given that executive orders don't create new laws

            As I've explained repeatedly and ad nauseam, I frequently vote for third-party candidates, but as long as we've got a first-past-the-post system for counting our votes, a third-party vote is just a protest vote. While there have been rare instances of third-party candidates winning a state-level office (Jesse Ventura), the last third-party presidential candidate to win was a guy named Abraham Lincoln. FPTP, by its nature, favors a two-party system; on the two occasions in US history that a viable third party has emerged on a national level, it has done so by replacing a major party. (The Republicans replaced the Whigs, who replaced the Federalists.) Always two there are; no more, no less.

            I would very much like to get out of the two-party system we've currently got. But just repeating "Don't vote for either party! Step 3 is profit!" over and over again is reductive nonsense that ignores the systemic issues that have led to a two-party system. We're not stuck with a two-party system because people just don't clap their hands hard enough; we're stuck with a two-party system because of math.

            If you (not referring to you particularly, but a hypothetical "you") want to support third-party and independent candidates, by all means support them -- especially at the local level, where they have a much higher chance of winning. But that's only part of the problem. If you want third-party candidates to have a chance, you should also oppose the electoral college (or at least favor changing it to proportional representation), and favor runoff voting or other systems that build consensus rather than allowing a candidate to win without a majority. (In four out of the last seven US elections -- including 2016 --, no candidate has gotten a majority of the popular vote.) Changing the qualifications for participation in the presidential debates (say, back to what they were in 1992, when Perot was allowed to participate) would be an immense help to third-party candidates, too.

            All that and we need better third-party candidates. I researched every single presidential candidate who was recognized in my state in '16; not just Johnson and Stein, but McMullin and all the other write-in candidates. Every single one was an embarrassment. Nader was a respectable candidate (in '00; not so much in '04), but I can't think of any others since him.

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

            • identicon
              Wendy Cockcroft, 25 Jul 2017 @ 5:18am

              Re: Re: Re: Re: Re: Given that executive orders don't create new laws

              Thad, you need proportional representation.

              http://www.fairvote.org/fair_representation#what_is_fair_voting

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

              • icon
                The Wanderer (profile), 27 Jul 2017 @ 7:50am

                Re: Re: Re: Re: Re: Re: Given that executive orders don't create new laws

                How does proportional representation help with single-office elections, such as the Presidency itself?

                It would almost certainly be an improvement over what we have now, but I remain convinced that it would not be enough to address all problems, at least to anywhere near the extent that a Condorcet-satisfying ranked-preference system (plus a suitable criterion for breaking the rare-but-possible Condorcet-method ties, such as "choose at random") would do.

                If a means can be found to *combine* Condorcet-satisfying ranked-preference voting with proportional representation, that might be even better, but I haven't seen one that seems adequate so far.

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

    • identicon
      Anonymous Coward, 24 Jul 2017 @ 2:55pm

      Re: Given that executive orders don't create new laws

      So where does this weird idea that anything the President does is legal come from?

      Video clip (7sec) from 1977 interview of former president Richard M. Nixon.

      Edited transcript

      Richard Nixon: Well, when the president does it, that means it is not illegal.

      [Interviewer David Frost:] By definition.

      Richard Nixon: Exactly . . .

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

      • identicon
        Anonymous Coward, 24 Jul 2017 @ 7:01pm

        Re: Re: Given that executive orders don't create new laws

                  So where does this weird idea that anything the President does is legal come from?

        … former president Richard M. Nixon.

        Coincidentally, just ran across this in the New York Times, “Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes” (by Charlie Savage, July 22, 2017)

        Why do some argue presidents are immune?

        … the Constitution’s “structural principles,” in the words of a memo written in September 1973 by Robert G. Dixon Jr., then the head of the Justice Department’s Office of Legal Counsel.

         . . .

        In October 1973, Mr. Nixon’s solicitor general, Robert H. Bork, submitted a court brief that similarly argued for an “inference” that the Constitution makes sitting presidents immune from indictment and trial.

        (Two of four embedded hyperlinks omitted.)

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

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 2:37pm

    He also wants to make it illegal for you to call for a boycott on Israel.

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

  • identicon
    Pixelation, 24 Jul 2017 @ 6:43pm

    "Senator Wyden Wants To Know How Many Times Americans Have Been Targeted By Executive Order 12333"

    Hahahahahaha! Yeah, he'll get an answer with a definite number.
    "I'm sorry Senator, we have no way of knowing the answer to that. You are better off asking us how many unicorns we've uncovered in our searches this month."

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

  • icon
    MyNameHere (profile), 25 Jul 2017 @ 1:44am

    Mr Wyden, can you show us on the doll where 12333 touched you?

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

    • identicon
      Wendy Cockcroft, 25 Jul 2017 @ 5:27am

      Re:

      Violation of personal privacy.

      No government has the implicit right to hold personal information me without my consent unless it serves a valid national security purpose. This means they don't need to know

      * whom I communicate with day-to-day
      * about my social media activities
      * about my personal political proclivities
      * what I do for a living (as long as I'm not breaking the law and even then, get a warrant!)
      * who my family, friends, and associates are
      * where I plan to go on holiday and how long I'll be away for
      * about my religious affiliations
      * about my medical history

      or anything like that. You may be an authoritarian exhibitionist, proclaiming all of the above with trumpets so the government can see what a good little obedient doggie you are but the rest of us are not.

      For the umpteenth time, with feeling, due process is not an impediment to justice. If you want my data, get a warrant!

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

      • identicon
        Wendy Cockcroft, 25 Jul 2017 @ 5:27am

        Re: Re:

        * ...hold personal information ABOUT me...

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

      • icon
        MyNameHere (profile), 25 Jul 2017 @ 1:30pm

        Re: Re:

        Wendy,

        Let's do your list:

        - you share it with everyone via social media
        - you share it every day via social media
        - you share it every day via social media
        - you share that on social media
        - you share that on social media
        - you share that on social media
        - you share that on social media
        - you share that on social media

        The govenrment should not be restricted from collecting any and all information made public or willing given to third party as part of business records. Nor should the be restricted from using that data in any legal manner they see fit.

        If you don't want the government to know, stop telling everyone else, and stop yelling it in the town square through a megaphone.

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

        • identicon
          Wendy Cockcroft, 26 Jul 2017 @ 2:33am

          Re: Re: Re:

          Things I don't share on social media every day:

          • whom I communicate with day-to-day
          • who my family, friends, and associates are
          • where I plan to go on holiday and how long I'll be away for
          • about my religious affiliations
          • about my medical history

          That the other information is available on social media doesn't create a right for the government to keep a dossier on me which can easily be abused by bad actors. It's not like that's never happened before.

          The government has no right at all to access my PRIVATE communications without probable cause and a warrant.

          The government has no right at all to access my social media activity without probable cause and a warrant. That's what this case is about: http://tech.economictimes.indiatimes.com/news/internet/twitters-lawsuit-over-surveillance-can-move-f orward-us-judge/59490093

          Not using social media as a surveillance tool.

          The govenrment should not be restricted from collecting any and all information made public or willing given to third party as part of business records. Nor should the be restricted from using that data in any legal manner they see fit.

          It's not legal to do that: information made public is on thing but they don't have the right to use social media for mass surveillance purposes.

          If you don't want the government to know, stop telling everyone else, and stop yelling it in the town square through a megaphone.

          I already know that, thank you. Anything I want private I keep private and don't put on social media.

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

        • icon
          The Wanderer (profile), 27 Jul 2017 @ 7:55am

          Re: Re: Re:

          I don't share *any* of those things on social media, in no small part because I don't *use* social media. (I've been considering getting a Twitter account for several years now, but it's probably a good thing I haven't, because I'd probably have tweeted @realDonaldTrump shortly after his election and gotten in trouble.)

          And yet the fact that I don't share these things does not prevent the government from collecting that information under such authorities as the executive order in question, if it chooses to do so.

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

    • identicon
      Anonymous Coward, 25 Jul 2017 @ 10:30pm

      Re:

      Whatever, can you show us on the doll where Senator Wyden touched you?

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

  • identicon
    Rekrul, 25 Jul 2017 @ 11:49pm

    I don't know why they call it "oversight" it should be "powerless observation".

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


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