from the lies-on-top-of-lies-on-top-of-legal-quackery dept
A huge report (747 pages) on the NSA's Stellar Wind program has been turned over to Charlie Savage of the New York Times after a successful FOIA lawsuit. Stellar Wind has its basis in an order issued by George W. Bush shortly after the 9/11 attacks. Not an executive order, per se, but Bush basically telling the NSA that it was OK to start collecting email and phone metadata, as well as warrantlessly tap international calls into and out of the United States.
The extensive detailing of the program's history contains some rather surprising elements. While much of it remains redacted, there's still enough exposed that indicates the program was like many others the NSA has pursued: expansive, intrusive, done without oversight… and ultimately mostly useless.
In 2004, the F.B.I. looked at a sampling of all the tips to see how many had made a “significant contribution” to identifying a terrorist, deporting a terrorism suspect, or developing a confidential informant about terrorists.Not that this lack of results kept those writing the report from celebrating the "successes" the FBI apparently couldn't find. Of course, there's nothing to be gleaned from this information because those have been completely redacted.
Just 1.2 percent of the tips from 2001 to 2004 had made such a contribution. Two years later, the F.B.I. reviewed all the leads from the warrantless wiretapping part of Stellarwind between August 2004 and January 2006. None had proved useful.
What is clear is that the program quite possibly did more harm than good. The NSA was sweeping up an unprecedented amount of information but -- because of its secret origins -- was mostly unable to share with the CIA or FBI. In particular, the warrantless wiretapping the NSA engaged in couldn't be passed on to the FBI until leaked details finally forced legislators to act on this apparent breach of Americans' privacy -- which they did by codifying the NSA's actions, making them perfectly -- and retroactively -- legal. Even then, it still posed problems for the FBI.
F.B.I. agents were asked to scrutinize phone numbers deemed suspicious because of information from the program. But the agents were not told why the numbers had been deemed suspicious, only “not to use the information in legal or judicial proceedings.”The FBI, which is now heavily engaged in the management of parallel construction for law enforcement Stingray usage, found itself in the awkward position of disguising the origin of intelligence it hadn't specifically asked for, as well as having the NSA tell it what it could and couldn't say in front of judges. This would include applications made to the FISA court.
That made some agents uncomfortable, and it was not clear how such mysterious leads fit into their rules for investigations.
We asked [DOJ intelligence counsel James] Baker whether he thought the restrictions on the use of Stellar Wind-derived leads disseminated to field offices, as described above, were sufficient to guard against including Stellar Wind information in FISA applications. Baker stated that his experience with FBI record-keeping practices did not give him a high degree of confidence that such separation could be consistently maintained. In addition, Baker believed that the nature of FBI international terrorism investigations would make it difficult to track Stellar Wind-derived information. According the FBI OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications.Rather than disconnect the FBI from the influx of questionably-obtained NSA "tips," the administration worked with the DOJ to make it easier for the agency to find something to do with intelligence passed on by the NSA.
The Justice Department created the new type of investigation, initially called a “threat assessment,” which could be opened with lower-grade tips. Agents now use them tens of thousands of times a year.Questionable "intel" leads to even more questionable not-quite-investigations. As can be seen by the FBI's own conclusions, about the only thing Stellar Wind did for it was increase the number of man hours wasted running down the NSA's "leads."
As for the FISA court, there's a good reason it's been perceived as a "rubber stamp" for NSA requests. Bush's secret executive authorizations were disclosed to FISA Judge Royce Lamberth by Bush himself. Further orders for these collections were routed only through Lamberth, and his successor, Colleen Kollar-Kotelly.
This belated admission (which did nothing to halt the collections) was prompted by none other than James Baker, who stumbled across a clumsy attempt at parallel construction.
[Baker] came across “strange, unattributed” language in an application for an ordinary surveillance warrant and figured it out, then insisted on telling Judge Lamberth.Another FISA court judge did discover the NSA's Stellar Wind program, although to him it appeared to be an extensive string of telephone metadata abuses by the NSA. Judge Reggie Walton threatened to shut down the Section 215 collection entirely in 2009, concerned about the agency's deliberate misleading of the court on the program's inner workings and its extent. As Marcy Wheeler points out, these weren't technically "abuses." They were just Stellar Wind collections that failed to be properly obscured when placed in front of a FISA judge other than Colleen Kollar-Kotelly.
I have long scoffed at the claim that the phone dragnet violations discovered in 2009 were accidental. It has always been clear they were, instead, features of Stellar Wind that NSA simply never turned off, even though they violated the FISC orders on it.Kollar-Kotelly, on the other hand, was much more indulgent when responding to NSA requests, allowing the agency to recast the low bar of pen register orders as justifying bulk email metadata collections obtained through Stellar Wind -- something she did a few years before the NSA allowed Stellar Wind to bleed into its Section 215 collections.
The Stellar Wind IG Report liberated by Charlie Savage confirms that.
It describes that numbers were put on an alert list and automatically chained.
"An automated process was created to alert and automatically chain new and potential reportable telephone numbers using what was called an “alert list.” Telephone numbers on the alert list were automatically run against incoming metadata to look for contacts. (PDF 31)"
This was precisely the substance of the violations admitted in 2009.
The documents don't restore any faith in the "oversight" of the NSA's activities. Instead, it shows two presidents acting in secrecy to permit the surveillance of American citizens and involved agencies covering it up with parallel construction, intense secrecy, manipulation of oversight bodies and several very questionable legal theories.