One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we've discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they've hit those walls, they've been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.
NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it's all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.
Slate's Ryan Gallagher has a post taking Michael Hayden, former director of the NSA and CIA, to task for statements he made supporting X-KEYSCORE shortly after the Guardian released the leaked documents.
Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it's really good news.”
Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that's been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.
Hayden's enthusiasm for expanded haystack construction notwithstanding, there's more to this interview than just the former boss applauding the work of his successors. The interview, conducted by Erin Burnett of CNN, presses a question NSA supporters like Hayden (and Gen. Alexander) have been dodging since day one
. Namely: does the NSA have the ability to spy on Americans' phone calls, emails and internet usage in real time?
The interview runs just over 8 minutes, but by the end of it you'll be sick of a couple of phrases Hayden repeats ad absurdum -- "lawfully collected" and "authority."
Before getting to the X-KEYSCORE questions, Burnett runs a clip of Gen. Alexander being lobbed softballs by Sen. Mike Rogers back on June 18th. Note Alexander's verbal head fake that makes it appear he has actually answered what was asked.
Rogers: Does the NSA have the ability to listen to American's phone calls and read their emails?
Alexander: No. We do not have that authority.
That wasn't what was asked. Without a doubt, the agency does not
have the authority to perform these acts. But what was asked was if the agency had the ability
, whether or not it was being utilized.
When Burnett presses Hayden on this point, he provides the same dodge. She asks if the NSA has the ability to collect this kind of data and Hayden responds by saying the NSA can utilize
this data, but only after it's been lawfully collected
When she pushes further, asking what's stopping the NSA from "collecting whatever the heck you want on whoever the heck you want," Hayden goes right back to claiming NSA analysts are only authorized
to query the data that's been already lawfully collected
. The question about ability
continues to be danced around.
Hayden even reiterates Alexander's pseudo-answer:
"General Alexander made it clear: we don't have the authorization to do that."
Then he goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful
. Hayden cannot possibly believe this statement is true. Sure, some analysts might reject legally-dubious requests from superiors but there is no way this is true across the board.
Hayden's continual reference to "lawfully collected" and "authorization" (along with the usual mentions of "oversight" and "checks and balances") is nothing short of ridiculous. It's as if he wants everyone to believe that because analysts aren't "authorized" to perform certain actions, they simply won't perform them. In Hayden's bizarrely credulous narrative, laws prevent lawbreaking
Over and over again, he stresses the point that the data has been "lawfully collected" and that the NSA is only "authorized" to perform certain actions with the collected data. His ultra-simplistic responses are almost laughable. Of course an analyst wouldn't perform real-time data monitoring! It's not permitted!
If Hayden's narrative holds true, then we need to be asking ourselves why criminal activity of any
kind occurs. After all, the laws are in place and people who know what's illegal and what isn't simply won't
perform illegal activities. The alternative is to assume Hayden believes intelligence agency employees are sinless wonders above reproach, who have never abused their position or power. But nothing about the agency's past bears that out
NSA officials have repeatedly lied to Congress. Rather than simply claim something is classified or can't be discussed publicly, they dance around straightforward questions, offering up "least untruthful
NSA analysts have abused their power
. Multiple times. The agency has illegally spied on journalists
, broken wiretapping laws, viewed President Clinton's emails
and recorded calls
from American soldiers back to America, passing around tapes of ones containing "phone sex" or "pillow talk." That's just a few instances that we KNOW about. To pretend the abuse is limited to the events revealed by whistleblowers is the height of condescension. To make the assertion that NSA analysts will only
act within the limits of laws (not that much is limited) is downright insulting.
Sure, Hayden may be projecting an idealized version of the agency solely for the purpose of answering these questions, but the continual dodging of the "ability" query simply raises more questions. Nothing about this Q&A inspires trust, considering it relies on meaningless terms like "lawful," "oversight" and "collected," the latter term seemingly completely resistant to definition.
Hayden's mantra of "We don't because we're not authorized" veers into self-parody by the end of the interview, presenting the former NSA head as an automaton among
spies. The rationale doesn't pass the laugh test. Laws prevent
lawlessness? Ridiculous. At best, they deter it and only then with sufficient consequences and enforcement. An agency that seemingly has answered to no one for most of its existence shouldn't be entrusted with a checking account, much less the constitutional rights of Americans.