Via Julian Sanchez
we learn that Senator Ron Wyden has released some updated responses
from our national intelligence bosses concerning the questions that Wyden (and a few other Senators) have been asking for years. It's been pretty clear that a "secret" interpretation under the FISA Amendments Act (related to the Patriot Act) has meant that the NSA is scooping up tons of American communications, even as its mandate is that it only cover foreign intelligence—and Wyden has been pushing for more information.
It appears that there are some pretty significant loopholes that have allowed the NSA to go a lot further. For example, it isn't allowed to collect information on Americans if "it's known at the time of acquisition" that the communications are domestic. So as long as it doesn't look when it's acquiring (but does look later) there's no problem. Similarly, it appears that the secret interpretation also means as long as the target of the investigation
being conducted -- and not necessarily the person whose communication is being intercepted -- is a foreign terrorist, the communication is fair game. That is, so long as the NSA can claim that they're collecting the information to go after Al Qaeda, they can claim that it's valid to intercept almost anything, as it "targets" foreign communications, even if it's collecting purely domestic communications. The key to all of this is reports that the NSA is likely collecting a massive chunk of information, possibly including pretty much all mobile phone records. Senator Wyden keeps asking about how many
Americans have had their data collected, and what interpretation the NSA is using. These seem like completely valid questions, but the NSA and James Clapper, the director of national intelligence, keep refusing to answer.
After the NSA responded
to yet another request from Wyden for answers to these questions, Wyden once again demanded answers
from James Clapper, the Director of National Security. Wyden, along with Senators Jeff Merkeley, Tom Udall and Mark Udall, sent a letter simply asking Clapper to respond to four simple questions -- many of which could be answered with a simple yes or no:
First, we asked if any entities have made any estimates -- even imprecise estimates -- about how many US cmmunications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please
provide an answer. We would expect this answer to be unclassified, but if you disagree please
provide your reasons for keeping this answer secret.
Second, we asked if it was possible to estimate the order of magnitude of this number. (For
example, is the number of US communications collected under section 702 closer to 100. or
100.000. or 100 million?) You did not answer this question directly, however the Director of the
NSA has made public statements that appear to estimate this order of magnitude. Specifically,
the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of
dossiers on people is absolutely false." Please explain whether this statement should be
understood to mean that the number of US communications collected under section 702 is less
than "millions or hundreds of millions." Since the NSA Director made this statement publicly,
we would expect this answer to be unclassified as well.
Third, we asked if any wholly domestic American communications had been collected under
section 702 authorities. Your response was classified. We do not understand how simply stating
whether any wholly domestic communications have been collected under section 702 authorities
would have any impact at all on US national security interests. if you believe that it would,
please explain why. And if you agree that it would not, please provide an unclassified answer to
Fourth, we noted that the FISA Amendments Act does not prohibit searching through
communications collected under section 702 to find the communications of particular
Americans, and asked if the US government has ever attempted to search for the
communications of a specific American in this way without a warrant or emergency
authorization. Your response was classified. We do not understand how providing a 'yes' or
'no' answer to this question would impact US national security interests in any way, and we ask
that you provide an unclassified response.
They further note, via a footnote, that the idea that it's reasonable to answer these questions in a classified manner because Senators
can read the classified answers makes little sense concerning the important debate on renewing the FISA Amendments Act, since the key staffers who Senators hire to understand this stuff probably can't read those classified responses.
We note that classifying these answers does not just keep them secret from the public. Most members of Congress
including eleven of the thirteen senators that signed our letter - do not have any staff who are cleared to read your
attachment, which will make it extremely difficult for most members to review and understand these" answers.
The whole thing is ridiculous... and making it even more ridiculous is the response sent by Clapper
which basically ignores the questions and says that he's happy to meet directly with any Senator in a classified setting to answer questions:
We cannot provide additional answers to your questions in an unclassified format.
Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these
authorities and answer any questions you might have.
Of course, that defeats the point of letting the public
know about how these laws are being interpreted and how much of their communications are being collected by the NSA. Furthermore, it fails to take into account the footnoted point that the key staffers who help elected officials understand this stuff may not be allowed to learn about these answers. Clapper's letter is even more ridiculous when he explains the justifications for not answering the questions. Basically, he gives a blanket "national security" answer, claiming that he's "balancing" the issues of security and public debate:
I also share your interest in an informed public debate on the government's use of its
intelligence collection authorities. As you know, it is my responsibility under the law to protect
critical intelligence activities from public disclosure in order to safeguard sensitive sources and
methods, including the government's acquisition of vital foreign intelligence information
through FAA authorities. Our earlier publicly available letters, including my August 24, 2012
unclassified letter (with classified annex) responding to your July 26, 2012 inquiry, and General
Alexander's November 13, 2012 letter, properly balance protecting classified information and
informing the public of the manner in which FAA is implemented.
That is, to put it simply: hogwash. As the original letter makes clear, there is no reason that national security is threatened by answering the basic questions being asked. Saying whether or not an estimate has been made on how many Americans have had their communications intercepted (not even saying what that number is) is not going to violate national security. As for the NSA letter from General Alexander that Clapper mentions, Wyden has released that too
and it's equally ridiculous -- again, insisting that the answers to such basic questions need to be classified.
In the end, it looks like the NSA and the National Intelligence Director aren't so interested in protecting national security with these non-answers, but their own job security. Claiming that such information needs to be kept secret may allow them to keep quiet how they've been using unique interpretations of the law to collect American citizens' communications, even as Congress pretends
that the bill is being interpreted as written, whereby domestic communications are off limits. The whole thing has become a joke, and shows what intelligence officials will do when there's no real oversight, and they can spy on citizens at will under a flimsy secret interpretation of the law that they never have to reveal.
The government spying on Americans using "secret interpretations" of laws, where intelligence officials get to play word games, rather than answer straight questions from Congress? That's not the way these things are supposed to work.