Tag: DOJ

Journalist and constitutional lawyer Glenn Greenwald and  the executive director of the American Civil Liberties Union Anthony D Romero discussed President Barack Obama’s new NSA “reforms” with Alex Wagner, the host of MSNBC’s “Now.”

Obama’s NSA ‘reforms’ are little more than a PR attempt to mollify the public

By Glenn Greenwald, The Guardian

Obama is draping the banner of change over the NSA status quo. Bulk surveillance that caused such outrage will remain in place

In response to political scandal and public outrage, official Washington repeatedly uses the same well-worn tactic. It is the one that has been hauled out over decades in response to many of America’s most significant political scandals. Predictably, it is the same one that shaped President Obama’s much-heralded Friday speech to announce his proposals for “reforming” the National Security Agency in the wake of seven months of intense worldwide controversy.

The crux of this tactic is that US political leaders pretend to validate and even channel public anger by acknowledging that there are “serious questions that have been raised”. They vow changes to fix the system and ensure these problems never happen again. And they then set out, with their actions, to do exactly the opposite: to make the system prettier and more politically palatable with empty, cosmetic “reforms” so as to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge. [..]

Today’s speech should be seen as the first step, not the last, on the road to restoring privacy. The causes that drove Obama to give this speech need to be, and will be, stoked and nurtured further until it becomes clear to official Washington that, this time around, cosmetic gestures are plainly inadequate.

Here is the press release from the ACLU commenting on the President’s NSA speech:

January 17, 2014

FOR IMMEDIATE RELEASE

CONTACT: [email protected]

WASHINGTON – President Obama today announced changes to some aspects of the NSA’s surveillance programs and left others in place. Anthony D. Romero, the executive director of the American Civil Liberties Union, had this reaction:

“The president’s speech outlined several developments which we welcome. Increased transparency for the Foreign Intelligence Surveillance Court, improved checks and balances at the FISA court through the creation of a panel of advocates, and increased privacy protections for non-U.S. citizens abroad – the first such assertion by a U.S. president – are all necessary and welcome reforms.

“However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling. The president outlined a process to study the issue further and appears open to alternatives. But the president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ that violates the Constitution. The president’s own review panel recommended that bulk data collection be ended, and the president should accept that recommendation in its entirety.”

A new chart comparing the ACLU’s proposals, President Obama’s announcement, and the USA FREEDOM Act (a bipartisan bill currently pending in Congress) is at: aclu.org/national-security/where-does-president-stand-nsa-reform

ACLU Action is demanding an end to dragnet surveillance at: aclu.org/endsurveillance

President Barack Obama once again fell short of taking any meaningful action on reining in the NSA surveillance programs or assuring that American’s right to privacy under the Fourth Amendment be protected. He made one of his predictable speeches that attempted to placate both critics and defenders, failing to actually do anything significant, all the while lecturing the public on history and expressing his offense that anyone would think that he had done an inadequate job or had enabled surveillance state policies. FDL’s Kevin Gosztola contrasted today’s speech with NSA director Gen. Keith Alexander’s statements to Congress and his inaugural address last year:

The narrative that Obama promoted in the part of his speech building up to announcement of reforms was starkly similar to what NSA director Gen. Keith Alexander has said when addressing members of Congress at hearings held in the aftermath of Snowden’s first disclosures. The narrative he used should make Americans even more skeptical of how substantive the changes to surveillance will be. [..]

One might remember that just about one year ago Obama gave an inaugural speech after his re-election where he said a “decade of war is now ending” and later described how Americans believe there is no need for “perpetual war.” But the very premise of Obama’s speech involved a demand to recognize the value of militarized surveillance and this militarization keeps the US on a permanent war footing putting civil liberties of Americans at risk so long as this footing is maintained.

Since there were such low expectations, Mike Masnick at Techdirt thought the announced reforms were more significant than expected but stopped short of fixing the actual problems:

• A judge will have to approve each query for data on the metadata collection from Section 215 of the PATRIOT Act.
• The “three hop” dragnet will be reduced down to two hops. That does, in fact, limit how far the NSA can search by quite a bit. That last hop is quite big.
• The NSA should no longer hold all of the data, meaning that the telcos will be expected to hold onto it (though, he leaves it up to Congress and the DOJ to figure out how to do this). He calls this a “transition” away from the Section 215 program, but that’s hardly clear.
• National Security Letters (NSLs) will no longer have an unlimited gag order on them. The Attorney General will need to set up guidelines for a time in which gag orders expire, with the possibility of extending them for investigations that are still ongoing.
• Companies will be given slightly more freedom to reveal data on the NSLs they get (though I don’t think he indicated the same thing for Section 702 orders…. which is a big concern).
• The Attorney General and the Director of National Intelligence will review annually FISC rulings to figure out what can be declassified.
• He promises to “work with Congress” to look at changes to the FISA court
• He is adding some very limited restrictions on spying on people overseas. It should only be used for actual counterterrorism/crime/military/real national security efforts.
• A State Department official will be in charge of handling “diplomacy issues” related to these changes on foreign spying.
• An effort will be started with technologists and privacy experts over how to handle “big data and privacy” in both the public and private sectors.

Marcy Wheeler at emptywheel addressed what the president does not consider abuse:

• The NSA spied on the porn and phone sex habits of ideological opponents, including those with no significant ties to extremists, and including a US person.
• According to the NSA in 2009, it had a program similar to Project Minaret – the tracking of anti-war opponents in the 1970s – in which it spied on people in the US in the guise of counterterrorism without approval. We still don’t have details of this abuse.
• When the NSA got FISC approval for the Internet (2004) and phone (2006) dragnets, NSA did not turn off features of Bush’s illegal program that did not comply with the FISC authorization. These abuses continued until 2009 (one of them, the collection of Internet metadata that qualified as content, continued even after 2004 identification of those abuses).
• Even after the FISC spent 9 months reining in some of this abuse, the NSA continued to ignore limits on disseminating US person data. Similarly, the NSA and FBI never complied with PATRIOT Act requirements to develop minimization procedures for the Section 215 program (in part, probably, because NSA’s role in the phone dragnet would violate any compliant minimization procedures).
• The NSA has twice – in 2009 and 2011 – admitted to collecting US person content in the United States in bulk after having done so for years. It tried to claim (and still claims publicly in spite of legal rulings to the contrary) this US person content did not count as intentionally-collected US person content (FISC disagreed both times), and has succeeded in continuing some of it by refusing to count it, so it can claim it doesn’t know it is happening.
• As recently as spring 2012, 9% of the NSA’s violations involved analysts breaking standard operating procedures they know. NSA doesn’t report these as willful violations, however, because they’ve deemed any rule-breaking in pursuit of “the mission” not to be willful violations.
• In 2008, Congress passed a law allowing bulk collection of foreign-targeted content in the US, Section 702, to end the NSA’s practice of stealing Internet company data from telecom cables. Yet in spite of having a legal way to acquire such data, the NSA (through GCHQ) continues to steal data from some of the same companies, this time overseas, from their own cables. Arguably this is a violation of Section 702 of FISA.
• NSA may intentionally collect US person content (including Internet metadata that legally qualifies as content) overseas (it won’t count this data, so we don’t know how systematic it is). If it does, it may be a violation of Section 703 of FISA.

No, Mr. President, this is not enough.

Cross posted from The Stars Hollow Gazette

We can’t tell you that we spied on you because it would violate your privacy??!!! This is precisely what the head of the NSA, General Keith B. Alexander told Senator Bernie Sanders (I-VT) in a letter responding to Sen. Sanders’ question about whether it collects information on members of Congress because doing so would violate the law.

“Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups,” Alexander wrote. “For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without the predicate.” [..]

Alexander doesn’t actually say so in his letter, but it’s very possible that the NSA collects data on members of Congress just as it does on everyone else, in bulk. The NSA said in a statement earlier this month that members of Congress have the “same privacy protections” as ordinary citizens, which means that they too might be caught up in the NSA’s terrorism queries of its telephone database, which may sweep up millions of innocent people in a single search.

Seriously. I want to know what drugs they have given the heads of the DNI & NSA that they think that this is a plausible explanation of why that can’t tell a United States Senator whether or not they have spied on him. Alexander really wants us to believe that searching the NSA data base for information would violate the law

This certainly comes under the category of the most lamest excuses for abuse of power.

Cross posted from The Stars Hollow Gazette

“Yes, I believe it is in the nation’s best interest to put all the phone records into a lockbox that we could search.”

   –Keith B. Alexander, September 2013

The New York Times has revealed new details about how the National Security Agency is spying on targets ranging from the United Nations to foreign governments to global text messages. We are joined by New York Times reporter Scott Shane, who reports that the NSA has emerged “as an electronic omnivore of staggering capabilities, eavesdropping and hacking its way around the world to strip governments and other targets of their secrets, all the while enforcing the utmost secrecy about its own operations.” The Times article reveals how the NSA intercepted the talking points of U.N. Secretary-General Ban Ki-moon ahead of a meeting with President Obama in April and mounted a major eavesdropping effort focused on the United Nations Climate Change Conference in Bali in 2007. The Times also reveals the existence of an NSA database called Dishfire that “stores years of text messages from around the world, just in case.” Another NSA program called Tracfin “accumulates gigabytes of credit card purchases.”

As U.S. Weighs Spying Changes, Officials Say Data Sweeps Must Continue

by David E. Sanger, The New York Times

The Obama administration has told allies and lawmakers it is considering reining in a variety of National Security Agency practices overseas, including holding White House reviews of the world leaders the agency is monitoring, forging a new accord with Germany for a closer intelligence relationship and minimizing collection on some foreigners.

But for now, President Obama and his top advisers have concluded that there is no workable alternative to the bulk collection of huge quantities of “metadata,” including records of all telephone calls made inside the United States.

Instead, the administration has hinted it may hold that information for only three years instead of five while it seeks new technologies that would permit it to search the records of telephone and Internet companies, rather than collect the data in bulk in government computers. Gen. Keith B. Alexander, the director of the N.S.A., has told industry officials that developing the new technology would take at least three years.

NSA official cites ‘stop and frisk’ in effort to explain searches of phone records

by Ali Watkins, McClatchy Washington Bureau

The general counsel of the National Security Agency on Monday compared the agency’s telephone metadata collection program to the highly controversial “stop-and-frisk” practice used by law enforcement officers, saying the agency uses that same standard to choose which phone numbers to query in its database.

“It’s effectively the same standard as stop-and-frisk,” Rajesh De said in an attempt to explain the evidentiary use of “reasonable and articulable suspicion” to identify which phone numbers to target from the agency’s huge database of stored cellphone records.

De made the comment during a rare hearing of an obscure government body, the Privacy and Civil Liberties Oversight Board, which Congress created in 2004 to oversee the government’s expanded intelligence collection operations but which until Monday had never held a substantive hearing. [..]

The comparison was the latest in questionable analogies that intelligence officials have used in an effort to explain the agency’s metadata collection programs since former defense contractor Edward Snowden revealed their existence in June.

Intelligence officials, for example, have said repeatedly that the collection of hundreds of millions of phone records allows them to build a haystack in which to find a needle, apparently missing the irony that “finding a needle in a haystack” is an expression meant to convey that a task is all but impossible.

NSA’s Path to Totalitarianism

by Norman Pollack, Counterpunch

The New York Times, a recipient, along with the Guardian, of Snowden’s disclosures about the illegal activities of Obama and USG, is breaking out, as now, of its reticence about the nation’s profound disregard of constitutional principles AND its related policies of global hegemony at all costs-here Scott Shane’s lengthy article (3 Nov.), “No Morsel Too Miniscule for All-Consuming N.S.A.”  NSA to all intents and purposes appears as a “rogue” organization, extremism in the putative service of liberty, except that the designation is a way of distracting attention, and removing accountability, from its authorization and mission at the highest levels-call it, licensed roguery, official (with Obama’s eyes supposedly averted).  Or better, call it, stripped of all cosmetics, the unerring mark of a Police State, itself become identical  with Fortress America, the National-Security State.

Eavesdropping on foreign leaders speaks to an arrogance of power, in which the US claims for itself every right, unilaterally, to script both sides of the foreign dialogue as well as micromanage to its own advantage the rhythm and content of global events, from regional trade partnerships to the use of military force in shoring up alliance systems against a host of enemies, some terrorist groups to be sure, but, using that as pretext, mounting counterrevolution globally against alternative modes, notably, socialist, of modernization: autonomous national and/or radical aspirations seeking distance from US market penetration, the tarnished necklace of its worldwide military bases and CIA stations, and not least, the ideological saturation (assisted by IMF and World Bank applications of pressure) of market fundamentalism, the property right, unrestricted capital flows, and the honor of serving American industry with the lowest possible labor costs, as meanwhile we see the financialization of capitalism here and the gutting of the manufacturing base.

Eavesdropping, of course, is the polite term for control freak, which translates, in the realm of power politics, into societal desperation to employ any and all means for staying on top, cyber-strategies of disruption as well as information-gathering, campaigns of disinformation, CIA-JSOC paramilitary programs of regime change, and, upping the ante, as here, learning every move in advance of foreign leaders, the better-take no chances, take no prisoners-to orchestrate world politics in our favor.

Cross posted from The Stars Hollow Gazette

During his stop over in Stockholm, Sweden on the way to the G-20, President Barack Obama renewed his defense of unfettered surveillance

“I can give assurances to the publics in Europe and around the world that we’re not going around snooping at people’s emails or listening to their phone calls,” Obama said in response to a Swedish reporter’s question during a news conference with Prime Minister Fredrik Reinfeldt as he began a whirlwind, 24-hour trip to Sweden. “What we try to do is to target very specifically areas of concern.”

Still, the president acknowledged that questions about privacy were likely to trail him in Europe – a continent that is protective of privacy rights – for some time. The issue also bubbled up during his trip to Germany in June, shortly after newspapers published reports based on documents leaked by former government contractor Edward Snowden.

Despite Obama’s assertions of a more narrow-scope effort, the Snowden-leaked documents show the NSA collects and stores all kinds of data traveling through the Internet, including emails, video chats and instant messages. Under one such classified program, known as Prism, the government can obtain secret court orders and gather mass amounts of data from major Internet companies such as Google, Apple, Microsoft and Facebook.

The ACLU is challenging the constitutionality of the intelligence agency’s action filing a complaint in the Southern District of New York against James Clapper in June. An up date on that lawsuit was posted today on their web site. (please note that the link contains an interesting but really annoying gif).

An impressive array of organizations and individuals filed amicus briefs yesterday in support of the ACLU’s constitutional challenge to the government’s collection of the call records of virtually everyone in the United States. The range of voices joining the protest against mass government surveillance-not to mention the bipartisan storm that has swept Congress since the recent NSA disclosures – is a real testament to the fact that the government’s dragnet surveillance practices are offensive to Americans from across the political spectrum.

Among the groups supporting our lawsuit are the National Rifle Association, the Reporters Committee for Freedom of the Press, and the PEN American Center. Philosophy Professor Michael Lynch submitted a brief arguing that privacy is fundamental to human dignity. Our friends at the Electronic Frontier Foundation submitted a brief on behalf of Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the Patriot Act. Rep. Sensenbrenner has decried the now-public call-records program as outside the scope of the law he authored.

Yes, you’re reading that right, the NRA and Rep. Sensenbrenner.

NSA surveillance: National Rifle Association backs ACLU challenge

by Ewen MacAskill, The Guardian

Anger at US government’s data trawling creates unlikely alliance in court between NRA and American Civil Liberties Union

The NRA, in an amicus brief in support of the ACLU, argues that the mass surveillance programme provides “the government not only with the means of identifying members and others who communicate with the NRA and other advocacy groups, but also with the means of identifying gun owners without their knowledge or consent”.

EFF Files Brief on Behalf of Rep. Sensenbrenner in NSA Spying Case

Press release from Electronic Freedom Foundation

Original Patriot Act Author Says Call-Data Collection Exceeds Congressional Intent

San Francisco – The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Rep. Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, in a case brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA). In the brief, Sensenbrenner argues that Congress never intended the Patriot Act to permit the NSA’s collection of the records of every telephone call made to, from and within the United States. Sensenbrenner urges the court to deny the NSA’s motion to dismiss and grant the ACLU’s motion for a preliminary injunction, which would halt the program until the case is decided.

In another development today, hundreds of pages from NSA spying documents are to be released in response to an FOIA request by EFF:

In a major victory in one of EFF’s Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of pages of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans. [..]

While the government finally released a white paper detailing its expansive (and unconstitutional) interpretation of Section 215 last month, more important FISA court opinions adopting at least part of that interpretation have remained secret. The results of EFF’s FOIA lawsuit will finally lift the veil on the dubious legal underpinnings of NSA’s domestic phone surveillance program.

This victory for EFF comes on the heels of another FOIA success two weeks ago, when the Justice Department was also forced to release a 2011 FISA court opinion ruling some NSA surveillance unconstitutional.

Now to that gif. It is visualization demonstrating the staggering scope of the NSA’s surveillance. Click on the image to view.

Cross posted fromThe Stars Hollow Gazette

In the midst of the angst of the debate over Obama bombing Syria, a front page article in Monday’s New York Times has revealed a new surveillance scandal involving a little known deal between the Drug Enforcement Agency (DEA) and AT&T called the Hemisphere Project. That deal gives the DEA access to 26 years of its phone records:

Unlike the controversial call record accesses obtained by the NSA, the data is stored by AT&T, not the government, but officials can access individual’s phone records within an hour of an administrative subpoena.

AT&T receives payment from the government in order to sit its employees alongside drug units to aid with access to the data.

The AT&T database includes every phone call which passes through the carrier’s infrastructure, not just those made by AT&T customers.

Details of the program – which was marked as law enforcement sensitive, but not classified – were released in a series of slides to an activist, Drew Hendricks, in response to freedom of information requests, and then passed to reporters at the New York Times.

Officials were instructed to take elaborate steps to ensure the secrecy of the Hemisphere program, a task described as a “formidable challenge” in the slide deck, which detailed the steps agencies had taken to “try and keep the program under the radar”.

The NYT‘s national security reporter, Scott Shane joined Democracy Now!‘s Amy Goodman to discuss the Hemisphere Project and it’s impact.

Cross posted from The Stars Hollow Gazette

As we have documented here at Stars Hollow, the task force that was created to pursue mortgage fraud and hold the banks accountable was, and is, a sham game to protect the banks from real relief for defrauded homeowners.

Your mortgage documents are fake!

by David Dayen, Salon

Prepare to be outraged. Newly obtained filings from this Florida woman’s lawsuit uncover a horrifying scheme

A newly unsealed lawsuit, which banks settled in 2012 for $1 billion, actually offers a different reason, providing a key answer to one of the persistent riddles of the financial crisis and its aftermath. The lawsuit states that banks resorted to fake documents because they could not legally establish true ownership of the loans when trying to foreclose.

This reality, which banks did not contest but instead settled out of court, means that tens of millions of mortgages in America still lack a legitimate chain of ownership, with implications far into the future. And if Congress, supported by the Obama Administration, goes back to the same housing finance system, with the same corrupt private entities who broke the nation’s private property system back in business packaging mortgages, then shame on all of us. [..]

Most of official Washington, including President Obama, wants to wind down mortgage giants Fannie Mae and Freddie Mac, and return to a system where private lenders create securitization trusts, packaging pools of loans and selling them to investors. Government would provide a limited guarantee to investors against catastrophic losses, but the private banks would make the securities, to generate more capital for home loans and expand homeownership.

That’s despite the evidence we now have that, the last time banks tried this, they ignored the law, failed to convey the mortgages and notes to the trusts, and ripped off investors trying to cover their tracks, to say nothing of how they violated the due process rights of homeowners and stole their homes with fake documents.

The very same banks that created this criminal enterprise and legal quagmire would be in control again. Why should we view this in any way as a sound public policy, instead of a ticking time bomb that could once again throw the private property system, a bulwark of capitalism and indeed civilization itself, into utter disarray? As Lynn Szymoniak puts it, “The President’s calling for private equity to return. Why would we return to this?”

White-collar fraud expert proves ‘mortgage-backed securities’ neither mortgage-backed nor secure

by Scott Kaufmann, The Raw Story

The forged documents were endorsed by employees of companies long bankrupt, executives who signed their name eight different ways, or “people” named “Bogus Assignee for Intervening Assignments” so that the banks could establish standing to foreclose in courts. The end result, according to white-collar fraud expert Lynn Szymoniak, is that over $1.4 trillion in mortgage-backed securities are still, to this day, based on fraudulent mortgage assignments.

The lawsuit against Wells Fargo, Bank of America, JPMorgan Chase, Citi and GMAC/Ally Bank was settled in early 2012 for $1 billion, but now that the evidence is unsealed, Szymoniak and her legal team are free to pursue the other named defendants, including HSBC, the Bank of New York Mellon, and US Bank. “I’m really glad I was part of collecting this money for the government, and I’m looking forward to going through discovery and collecting the rest of it,” Szymoniak told Salon.

Eric Holder Owes the American People an Apology

Jonathan Weil, Bloomberg News

The Justice Department made a long-overdue disclosure late Friday: Last year when U.S. Attorney General Eric Holder boasted about the successes that a high-profile task force racked up pursuing mortgage fraud, the numbers he trumpeted were grossly overstated. [..]

In an updated press release Friday, which corrected its initial release of last October, the Justice Department said a review of the cases found that the inflated figures included defendants who had been sentenced or convicted in fiscal year 2012 — not just people who had been criminally charged, as originally reported. Its original, lofty tally also included cases in which the victims weren’t distressed homeowners. [..]

What a charade. No wonder the government found it so difficult to bring a meaningful number of accounting-fraud cases against bank executives after the financial crisis. Its own books were cooked. [..]

This was the second time, mind you, that Holder’s Justice Department had pulled a stunt like this. In December 2010, Holder held a press conference to tout a supposed sweep by the president’s Financial Fraud Enforcement Task Force called “Operation Broken Trust.” (The mortgage-fraud program was part of the same task force.) As with the mortgage-fraud initiative, Broken Trust wasn’t actually a sweep. All the Justice Department did was lump together a bunch of small-fry, penny-ante fraud cases that had nothing to do with one another. Then it held a press gathering.

Between this sham that protects the banks and the egregious violations of the press and privacy of all Americans with abusive use of FISA, Eric Holder owes us more than an apology, he owes us his resignation as Attorney General.

Cross posted from The Stars Hollow Gazette

Someone suggested that latest lie told by President Barack Obama on the Jay Leno Show that other night stating, “There is no spying on Americans. We don’t have a domestic spying program,” was up there with the 10 greatest lies ever told. That fallacy of the president’s declaration was made very obvious in a New York Times article by Charlie Savage on the latest and greatest NSA domestic surveillance program. The NSA has been copying virtually all overseas messages that Americans send or receive, scanning them to see if they contain any references to people or subjects the agency thinks might have a link to terrorists.

Hints of the surveillance appeared in a set of rules, leaked by Mr. Snowden, for how the N.S.A. may carry out the 2008 FISA law. One paragraph mentions that the agency “seeks to acquire communications about the target that are not to or from the target.” The pages were posted online by the newspaper The Guardian on June 20, but the telltale paragraph, the only rule marked “Top Secret” amid 18 pages of restrictions, went largely overlooked amid other disclosures.

In an opinion by the New York Times Editorial Board, these messages could be very private and no connection to terrorists or terrorist activity:

That could very well include innocent communications between family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated.

Data collection on this scale goes far beyond what Congress authorized, and it clearly shreds a common-sense understanding of the Fourth Amendment. It’s as if the government were telling its citizens not to even talk about security issues in private messages or else they will come to the attention of the nation’s spies.

At the Electronic Frontier Foundation, Mark Rumold explains what it means to be an NSA target:

When “Target” Means Searching a Specific Person’s Communications

First, at least this much is clear: a “target” under the FA (FISA Amendments Act ) must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.”  Under the FAA, the government can thus “target” a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).

So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. [..]

When “Target” Means Searching Everyone’s Communications

Once a target is established, the NSA believes it can expand the sweep of its interception far more broadly than the communhttp://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-a-procedures-nsa-documentications of the particular, identified target. Notably, the NSA’s procedures state (emphasis added):

   [I]n those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country.

In plain English: the NSA believes it not only can (1) intercept the communications of the target, but also (2) intercept communications about a target, even if the target isn’t a party to the communication. The most likely way to assess if a communication is “about” a target is to conduct a content analysis of communications, probably based on specific search terms or selectors.

And that, folks, is what we call a content dragnet.

Importantly, under the NSA’s rules, when the agency intercepts communications about a target, the author or speaker of those communications does not, thereby, become a target: the target remains the original, non-US person. But, because the target remains a non-US person, the most robust protection for Americans’ communications under the FISA Amendments Act (and, indeed, the primary reassurance the government has given about the surveillance) flies out the window. If you communicate about a target of NSA surveillance, your citizenship is irrelevant: the only thing standing between you and NSA surveillance is your IP address or the fiber optic path through which your communications flow.

Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:

“The program described by the New York Times involves a breathtaking invasion of millions of people’s privacy.  The NSA has cast a massive dragnet over Americans’ international communications, collecting and monitoring all of them, and retaining some untold number of them in government databases.  This is precisely the kind of generalized spying that the Fourth Amendment was intended to prohibit.

“The government’s scrutiny of virtually every international email sent by Americans will have extraordinary consequences for free expression. Americans will inevitably hesitate to discuss controversial topics, visit politically sensitive websites, or interact with foreigners with dissenting views. By injecting the NSA into virtually every cross-border interaction, the U.S. government will forever alter what has always been an open exchange of ideas.”

“There is no spying on Americans. We don’t have a domestic spying program,” is right up there with “I am not a crook” and “I did not have sex with that woman.”

Cross posted from The Stars Hollow Gazette

The National Security Agency isn’t just looking to “keep us safe” from terrorists by collecting metadata, the NSA is sharing its information with the secretive Special Operations Division of the U.S. Drug Enforcement Administration (DEA) which is then passing that information to local authorities, covering up the NSA source.

U.S. directs agents to cover up program used to investigate Americans

by John Shiffman and Kristina Cooke, Reuters

A secretive US Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

It isn’t just the DEA that is doing this, the Justice Department is also receiving information about non-terrorist related criminal activity.

NSA handing over non-terror intelligence

by Stewart M. Powell, SFGate

The National Security Agency is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism.

This little-known byproduct of counterterrorism surveillance continues amid controversy over the NSA’s wide-ranging collection of domestic communications intelligence, including Americans’ telephone calling records and Internet use.

It is unclear whether the referrals have been built upon the content of telephone calls and emails. Administration officials have previously assured Congress that NSA surveillance focuses on so-called metadata and in the main does not delve into the content of individual calls or email messages.

Also, some in the legal community question the constitutionality of criminal prosecutions stemming from intelligence-agency eavesdropping.

Other Agencies Clamor for Data N.S.A. Compiles

by Eric Lichtblau and Michael S. Schmidt, The New York Times

The National Security Agency’s dominant role as the nation’s spy warehouse has spurred frequent tensions and turf fights with other federal intelligence agencies that want to use its surveillance tools for their own investigations, officials say.

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Intelligence officials say they have been careful to limit the use of the security agency’s troves of data and eavesdropping spyware for fear they could be misused in ways that violate Americans’ privacy rights.

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the intelligence community has been agitated in recent years for the opposite reason: frustrated officials outside the security agency say the spy tools are not used widely enough.

At emptywheel, bmaz points out this is nothing in the Reuter’s article on the SOD wasn’t already known, just no one has been paying attention:

First, the headline is misleading. The caption is:

   Exclusive: U.S. directs agents to cover up program used to investigate Americans

Well, not really (and, in fairness, the actual body of the article is about a practice that is a result of the SOD). DEA’s Special Ops Division is neither new nor secret in the least, and there is no way to “cover it up”. Google it; I got “About 289,000 results (0.29 seconds)” as a return. You will get something similar. The revelation that SOD was used in the Viktor Bout case is also not new, here is a Time story detailing it from 2011.

In fact, any criminal defense attorney who did cocaine hub conspiracy cases in the 90′s could have told you most of the Reuter’s article in their sleep. That was exactly the scene that DEA-SOD was born from. As the war on drugs went nuclear, the DEA devised what they termed the “Kingpin Strategy” (pdf):

   In 1992, the DEA instituted the Kingpin Strategy that focused investigative and enforcement efforts on specific drug trafficking organizations. The DEA planned to dis- able major organizations by attacking their most vulnerable areas-the chemicals needed to process the drugs, their finances, communications, transportation, and leadership structure.

   The Kingpin Strategy held that the greatest impact on the drug trade took place when major drug organizations were dis- rupted, weakened, and destroyed. This strategy focused enforcement efforts and resources against the highest-level traffickers and their organizations, and provided a systematic way of attacking the various vulnerabilities of the organiza- tions. By systematically attacking each of these vulnerabilities, the strategy aimed to destroy the entire organization, and with it, the organization’s capacity to finance, produce, and distrib- ute massive amounts of illegal drugs. Each blow weakened the organization and improved the prospects for arresting and prosecuting the leaders and managers of the organizations.

   The Kingpin Strategy evolved from the DEA’s domestic and overseas intelligence gathering and investigations.

And from Kingpin sprung the Special Operations Division:

   Under the original Kingpin Strategy, DEA headquarters often dictated the selection of Kingpin targets. In response to the SACs’ concerns, Administrator Constantine agreed to allow them more latitude in target selection. In conjuction with this decision, he established the Special Operations Division at Newington, Virginia, in 1994 to coordinate multi-jurisdictional investigations against major drug trafficking organizations responsible for the flow of drugs into the United States.

On this morning’s Democracy Now!, Guardian journalist Glenn Greenwald responded to a report by Reuters.

“It’s a full-frontal assault on the Fourth, Fifth and Sixth Amendments and on the integrity of the judicial process, because they’re deceiving everyone involved in criminal prosecutions about how this information has been obtained,” Greenwald says.

Cross posted from The Stars Hollow Gazette

I think the Obama administration has lost its collective mind and thinks that we are all too stupid to notice, but this is beyond absurd.

Obama DOJ again refuses to tell a court whether CIA drone program even exists

by Glenn Greenwald, The Guardian

As the nation spent the week debating the CIA assassination program, Obama lawyers exploit secrecy to shield it from all review

It is not news that the US government systematically abuses its secrecy powers to shield its actions from public scrutiny, democratic accountability, and judicial review. But sometimes that abuse is so extreme, so glaring, that it is worth taking note of, as it reveals its purported concern over national security to be a complete sham.

Such is the case with the Obama DOJ’s behavior in the lawsuit brought by the ACLU (pdf) against the CIA to compel a response to the ACLU’s Freedom of Information Act (FOIA) request about Obama’s CIA assassination program. That FOIA request seeks nothing sensitive, but rather only the most basic and benign information about the “targeted killing” program: such as “the putative legal basis for carrying out targeted killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out.”

Everyone in the world knows that the CIA has a targeted killing program whereby it uses drones to bomb and shoot missiles at those it wants dead, including US citizens. This is all openly discussed in every media outlet.

Key Obama officials, including the president himself, not only make selective disclosures about this program but openly boast about its alleged successes. Leon Panetta, then the CIA Director, publicly said all the way back in 2009 when asked about the CIA drone program: “I think it does suffice to say that these operations have been very effective because they have been very precise.” In 2010, Panetta, speaking to the Washington Post, hailed the CIA drone program in Pakistan as “the most aggressive operation that CIA has been involved in in our history”. This is just a partial sample of Obama official boasts about this very program (for more, see pages 15 to 28 here).

Despite all that, the Obama DOJ from the start has refused not only to provide the requested documents about the CIA drone program, but they refuse to say whether such documents even exist. They do so by insisting that whether there even exists such a thing as a “CIA drone program” is itself classified, and therefore, they can neither admit nor deny whether they possess any of the documents sought by the FOIA request: “the very fact of the existence or nonexistence of such documents is itself classified,” repeats the Obama DOJ over and over like some hypnotic Kafkaesque mantra.

Obama’s Reverse Imaginary Friend, the Assassination Robot

bt Marcy Wheeler, emptywheel

The Obama Administration is getting more and more like that crazy old man in the park talking to an imaginary friend. Only it works in reverse. It sends out real people to engage in hours of conversations with other real people about a real topic and then pretends both were pretend.

It sends John Brennan to the Senate for 3.5 hours where he has conversations about drones over and over with people, never once claiming not to understand what they mean when they discuss drones and/or targeted killing. [..]

And yet in spite of the fact that Brennan talks about lethal strikes over and over, the government maintains (pdf) that none of these conversations – none of these mentions of lethal strikes – amounts to an admission that the government is, in fact, conducting lethal strikes.

   Plaintiffs also cite the transcript of the confirmation hearing of John Brennan, the nominee for Director of Central Intelligence. They assert that “the nominee . . . and members of the committee extensively discussed various aspects of the CIA’s targeted killing program . . . .” However, plaintiffs identify no statement in which Mr. Brennan allegedly confirms purported CIA involvement in the use of unmanned aerial vehicles for “targeted killing.” Rather, plaintiffs cite instances in which members of Congress mentioned “targeted killing,” and general discussions of “targeted killing” that do not address the involvement of any particular agency.

Well, fine. If John Brennan believes these to be imaginary conversations with an imaginary oversight committee, then it’s clear he is mentally ill-equipped to deal with the stress of running the CIA. [..]

What’s most interesting, however, is that this apparently batshit crazy man talking to ghosts, John Brennan, is going to have to deal with a woman, Dianne Feinstein, who said this, as one of his primary overseers.

   FEINSTEIN: I have been calling and others have been calling the rank – the vice chairman and I on the use of target – for increased transparency on the use of targeted force for over a year, including the circumstances in which such force is directed against U.S. citizens and noncitizens alike.

   I’ve also been attempting to speak publicly about the very low number of civilian casualties that result from such strikes. I have been limited in my ability to do so. But for the past several years, this committee has done significant oversight of the government’s conduct of targeted strikes and the figures we have obtained from the executive branch which we have done our utmost to verify, confirm that the number of civilian casualties that have resulted from such strikes each year has typically been in the single digits. When I asked to give out the actual numbers, I’m told, “you can’t”, and I say, “why not?” “Because it’s classified. It’s a covert program. For the public, it doesn’t exist.” Well, I think rationale, Mr. Brennan, is long gone and I’m going to talk to you and my questions a little bit about that because I think it’s very important that we share this data with people.

This apparently batshit crazy person (according to the Administration, not me) is telling the Chair of the Committee that oversees the CIA that she’s delusional, the programs she’s talking about don’t exist.

There’s a lot of crazy old people talking on benches in DC, I guess.

And what abou those seven memos that the Senate Intelligence Committee requested before they vote on Brennan’s confirmation are imaginary, too?

What is even more incongruous is that Tea Party crazy Senator from Kentucky, Rand Paul asked some very serious questions in two letters that no one else asked

Do you believe that the president has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil? What about the use of lethal force against a non-U.S. person on U.S. soil?

Do you believe that the prohibition on CIA participation in domestic law enforcement, first established by the National Security Act of 1947, would apply to the use of lethal force, especially lethal force directed at an individual on a targeting list, if a U.S. citizen on a targeting list was found to be operating on U.S. soil? What if the individual on the targeting list was a non-U.S. person but found to be operating on U.S. soil? Do you consider such an operation to be domestic law enforcement, or would it only be subject to the president’s wartime powers?

Do you believe that the Posse Comitatus Act, or any other prohibition on the use of the military in domestic law enforcement, would prohibit the use of military hardware and/or personnel in pursuing terrorism suspects-especially those on a targeting list-found to be operating on U.S. soil? If not, would you support the use of such assets in pursuit of either U.S. citizen or non-U.S. persons on U.S. soil suspected of terrorist activity?

What role did you play in approving the drone strike that led to the death of the underage, U.S. citizen son of Anwar al-Awlaki? Unlike his father, he had not renounced his U.S. citizenship. Was the younger al-Awlaki the intended target of the U.S. drone strike which took his life? Further, do you reject the subsequent claim, apparently originating from anonymous U.S. government sources, that the young man had actually been a “military age male” of 20 years or more of age, something that was later proven false by the release of his birth certificate?

Is the U.S. drone strike strategy exclusively focused on targeting al Qaeda, or is it also conducting counterinsurgency operations against militants seeking to further undermine their government, such as in Yemen?

Do you support the Attorney General’s 2012 guidance to the NCTC that it may deliberately collect, store, and “continually assess” massive amounts of data on all U.S. citizens for potential correlations to terrorism, even if the U.S. citizens targeted have no known ties to terrorism?

And you thought Bush was stupid? This is too surreal.