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.

Filed Under: domestic surveillance, eo 12333, executive order 12333, nsa, odni, ron wyden, surveillance


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  1. 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.


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