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.