Tag: Fourth Amendment

Cross posted from The Stars Hollow Gazette

The Electronic Freedom Foundation has won a victory in its fight with the government in federal court to release a FISA court ruling that found the NSA in violation of the Fourth Amendment, illegally collecting e-mails of tens of thousands of Americans.

NSA illegally collected thousands of emails before Fisa court halted program

by Spencer Ackerman, The Guardian

Declassified court ruling from 2011 found government ‘disclosed substantial misrepresentation’ of data collection program

In his 86-page opinion, declassified on Wednesday, Judge John Bates wrote that the government informed the court that the “volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe”.

The ruling is one of three documents released in response to a Freedom of Information Act request by the Electronic Frontier Foundation, and comes amid growing public and congressional concern over the scope of NSA surveillance programs. [..]

Wholly domestic communications are banned from the NSA’s collection under section 702 of the 2008 Fisa Amendments Act. An NSA document leaked by whistleblower Edward Snowden and published by the Guardian on August 9 referred to an October 2011 change in the rules, by which the NSA must purge data it improperly collected but that said the NSA could still search its so-called “702” databases for “certain US person names and identifiers,” though not until an “effective oversight process” was implemented.

Senator Ron Wyden, a member of the intelligence committee, refers to the NSA’s still-current authorities to query those databases for US person information as a “backdoor search” loophole.

“The ruling states that the NSA has knowingly acquired tens of thousands of wholly domestic communications under section 702 of the Foreign Intelligence Surveillance Act, even though this law was specifically written to prohibit the warrantless acquisition of wholly domestic communications,” Wyden said.

“The FISA Court has noted that this collection violates the spirit of the law, but the government has failed to address this concern in the two years since this ruling was issued. This ruling makes it clear that FISA Section 702, as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.”

Anchor and managing editor for “Dan Rather Reports” on AXS-TV, Dan Rather joined Rachel Maddow to talk about the abuse of power and general bungling undermines the credibility of the US and calls into question how the “war on terror’ has been conducted over the last 12 years since 9/11.

The NSA has “built a surveillance network that covers more Americans’ Internet communications than officials have publicly disclosed, current and former officials say. The system has the capacity to reach roughly 75% of all U.S. Internet traffic in the hunt for foreign intelligence, including a wide array of communications by foreigners and Americans.”

Cross posted from The Stars Hollow Gazette

In her opening segment on her show, Rachel Maddow took the US and Great Britain to task for harassing journalists like Laura Poitras and Glenn Greenwald’s partner, David Miranda.

Apparently, when Rachel went on the air she was not aware of this latest development.

UK Authorities Destroy Guardian’s Hard Drives, Force Journalists to Report NSA Stories In Exile

by Trevor Timm, Freedom of the Press Foundation

Fresh off the news that UK authorities detained the partner of Guardian journalist Glenn Greenwald for nine hours yesterday, Guardian editor-in-chief Alan Rusbridger has published [an extraordinary report http://www.theguardian.com/com… of government pressure and intimidation that should send chills down the spine of anyone who cares about a free press.

Rusbridger, who up until recently was based in the UK, recounts being approached by UK government officials multiple times and threatened with legal action unless he returned or destroyed the Edward Snowden documents the Guardian had in its possession. Officials from GCHQ, Britain’s NSA counterpart, eventually entered Guardian headquarters and destroyed the hard drives that contained copies of the Snowden documents.

David Miranda, schedule 7 and the danger that all reporters now face

by Alan Rusbridger, The Guardian

As the events in a Heathrow transit lounge – and the Guardian offices – have shown, the threat to journalism is real and growing

During one of these meetings I asked directly whether the government would move to close down the Guardian’s reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government’s intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks – the thumb drive and the first amendment – had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?

The man was unmoved. And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. “We can call off the black helicopters,” joked one as we swept up the remains of a MacBook Pro.

Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won’t do it in London. The seizure of Miranda’s laptop, phones, hard drives and camera will similarly have no effect on Greenwald’s work.

The state that is building such a formidable apparatus of surveillance will do its best to prevent journalists from reporting on it. Most journalists can see that. But I wonder how many have truly understood the absolute threat to journalism implicit in the idea of total surveillance, when or if it comes – and, increasingly, it looks like “when”.

I wonder if the White House was given a “head’s up” on this action.  

Cross posted from The Stars Hollow Gazette

In another assault on the freedom of the press and a naked attempt at intimidation, journalist Glenn Greenwald’s Brazilian partner, David Miranda was detained at Heathrow Airport and questioned for nine hours under Great Britain’s Terrorism Act:

David Miranda, who lives with Glenn Greenwald, was returning from a trip to Berlin when he was stopped by officers at 8.05am and informed that he was to be questioned under schedule 7 of the Terrorism Act 2000. The controversial law, which applies only at airports, ports and border areas, allows officers to stop, search, question and detain individuals.

The 28-year-old was held for nine hours, the maximum the law allows before officers must release or formally arrest the individual. According to official figures, most examinations under schedule 7 – over 97% – last less than an hour, and only one in 2,000 people detained are kept for more than six hours (pdf).

Miranda was released, but officials confiscated electronics equipment including his mobile phone, laptop, camera, memory sticks, DVDs and games consoles. [..]

While in Berlin, Miranda had visited Laura Poitras, the US film-maker who has also been working on the Snowden files with Greenwald and the Guardian. The Guardian paid for Miranda’s flights.

This was the reaction of Widney Brown, Amnesty International’s senior director of international law and policy:

“It is utterly improbable that David Michael Miranda, a Brazilian national transiting through London, was detained at random, given the role his partner has played in revealing the truth about the unlawful nature of NSA surveillance.

“David’s detention was unlawful and inexcusable. He was detained under a law that violates any principle of fairness and his detention shows how the law can be abused for petty, vindictive reasons.

“There is simply no basis for believing that David Michael Miranda presents any threat whatsoever to the UK government. The only possible intent behind this detention was to harass him and his partner, Guardian journalist Glenn Greenwald, for his role in analysing the data released by Edward Snowden.”

Of course the White House denies ordering the detention or the confiscation of Mr. Miranda’s property, but considering the lies that have been told and the use of “national security” as a reason to cover up the lies and crimes of two administrations, there is certainly good reason to question the veracity of any statements from the White House. Deputy Press Secretary Josh Earnest admitted that the White House was notified in advance of the action.

The detention has caused some outrage in Britain with  condemnation and calls for an explanation from the police of why Mr. Miranda was held under the anti-terroism law since there was no little evidence that he was involved in, or connected to terrorism.

Keith Vaz (chairman of the Home Affairs Select Committee) called the detention of Miranda “extraordinary” and said he would be writing immediately to police to request information about why Miranda was held under anti-terrorism laws when there appeared to be little evidence that he was involved in terrorism. [..]

“It is an extraordinary twist to a very complicated story,” Vaz told BBC Radio 4’s Today programme on Monday. “Of course it is right that the police and security services should question people if they have concerns or the basis of any concerns about what they are doing in the United Kingdom. What needs to happen pretty rapidly is we need to establish the full facts – now you have a complaint from Mr Greenwald and the Brazilian government. They indeed have said they are concerned at the use of terrorism legislation for something that does not appear to relate to terrorism, so it needs to be clarified, and clarified quickly.”

Vaz said he was not aware that personal property could be confiscated under the laws. “What is extraordinary is they knew he was the partner [of Greenwald] and therefore it is clear not only people who are directly involved are being sought but also the partners of those involved,” he said. “Bearing in mind it is a new use of terrorism legislation to detain someone in these circumstances […] I’m certainly interested in knowing, so I will write to the police to ask for the justification of the use of terrorism legislation – they may have a perfectly reasonable explanation. But if we are going to use the act in this way … then at least we need to know so everyone is prepared.”

The British anti-terrorist legislation watchdog, David Anderson QC, also called for an explanation from called on the Home Office and Metropolitan police over what is being called a “gross misuse” of the terror law.:

The intervention by Anderson came as the shadow home secretary, Yvette Cooper, called for an urgent investigation into the use of schedule 7 of the Terrorism Act 2000 to detain Miranda. Cooper said ministers must find out whether anti-terror laws had been misused after detention caused “considerable consternation”.

Cooper said public support for schedule 7 of the Terrorism Act could be undermined if there was a perception it was not being used for the right purposes. “Any suggestion that terror powers are being misused must be investigated and clarified urgently,” she said. “The public support for these powers must not be endangered by a perception of misuse.

Laura Poitras, with whom Mr. Miranda was visiting in Berlin and whose work usually involves sensitive national security issues, had recently relocated to Berlin, Germany because of the harassment at US airports.

Glenn Greenwald called the detention of his partner a failed attempt at intimidation:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic. Even the Mafia had ethical rules against targeting the family members of people they felt threatened by. But the UK puppets and their owners in the US national security state obviously are unconstrained by even those minimal scruples.

If the UK and US governments believe that tactics like this are going to deter or intimidate us in any way from continuing to report aggressively on what these documents reveal, they are beyond deluded. If anything, it will have only the opposite effect: to embolden us even further. Beyond that, every time the US and UK governments show their true character to the world – when they prevent the Bolivian President’s plane from flying safely home, when they threaten journalists with prosecution, when they engage in behavior like what they did today – all they do is helpfully underscore why it’s so dangerous to allow them to exercise vast, unchecked spying power in the dark.

The press and the supporters of police state tactic of the US and Britain focused on the individuals involved completely miss the heart of this matter, the world wide freedom of the press, the free flow of information and the rights of people’s property and privacy. They are missing the forest for the trees.

Cross posted from The Stars Hollow Gazette

With each recent revelation about the NSA’s spying programs government officials have tried to reassure the American people that all three branches of government-the Executive branch, the Judiciary branch, and the Congress-knowingly approved these programs and exercised rigorous oversight over them. President Obama recited this talking point just last week, saying: “as President, I’ve taken steps to make sure they have strong oversight by all three branches of government and clear safeguards to prevent abuse and protect the rights of the American people.”  With these three pillars of oversight in place, the argument goes, how could the activities possibly be illegal or invasive of our privacy?

Today, the Washington Post confirmed that two of those oversight pillars-the Executive branch and the court overseeing the spying, the Foreign Intelligence Surveillance Court (FISA court )- don’t really exist. The third pillar came down slowly over the last few weeks, with Congressional revelations about the limitations on its oversight, including what Representative Sensennbrenner called “rope a dope” classified briefings. With this, the house of government trust has fallen, and it’s time to act.

(T)he latest report from the Washington Post based on leaked documents shows that an audit of the NSA’s activities shows it broke privacy rules, mostly to spy on Americans, thousands of times per year:

   The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.

   Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by law and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.

The audit info comes from Ed Snowden’s leaks, so it seems rather incredible that President Obama, Keith Alexander and Mike Rogers didn’t seem to realize that this audit would eventually come to light, showing that they were flat out 100% lying to the American public.

The chief judge of FISC, Reggie Walton, who has reacted angrily in the past to the claims of FISC being a “rubber stamp”, has now admitted that the FISC really can’t check on what the NSA is doing and relies on what they tell him to make sure that they’re not breaking the law.

   “The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

That’s not quite true. You see, with “any other court” when it comes to “enforcing compliance” things aren’t all hidden away from everyone, so there is scrutiny to make sure that there’s compliance. Not here.

Either way, this again shows just how laughable President Obama’s claims are about the FISC’s oversight abilities:

   “We also have federal judges that we’ve put in place who are not subject to political pressure,” Obama said at a news conference in June. “They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.”

Not quite. Now we know that they rely on the NSA to tell the judges what they might see if they were looking over their shoulders… and the NSA isn’t entirely truthful to FISC about that.

The latest revelation that the House Intelligence Committee withheld surveillance information from Congress before a critical vote to renew the Patriot Act has resulted in pressure from both side of the aisle and government watch dogs on committee chair Mike Rogers (R-MI). The demand is for an explanation of why a document that prepared by the justice department and intelligence community was not shared by the panel’s leadership. From Spencer Ackerman at The Guardian:

The accusations broaden the focus of the surveillance controversy from the National Security Agency to one of the congressional committees charged with exercising oversight of it – and the panel’s closeness to the NSA it is supposed to oversee.

(Michigan Republican Justin) Amash told the Guardian on Monday that he had confirmed with the House intelligence committee that the committee did not make non-committee members aware of the classified overview from 2011 of the bulk phone records collection program first revealed by the Guardian thanks to whistleblower Edward Snowden. The document was expressly designed to be shared with legislators who did not serve on the panel; it appears that a corresponding document for the Senate in 2011 was made available to all senators.

“Nobody I’ve spoken to in my legislative class remembers seeing any such document,” Amash said.

Amash speculated that the House intelligence committee withheld the document in order to ensure the Patriot Act would win congressional reauthorization, as it ultimately did.

On Monday, a former senate staffer Jennifer Hoelzer, who was deputy chief of staff for Sen. Ron Wyden (D-OR), spoke with Amy Goodman of Democracy Now! on President Barack Obama’s proposed changes to reform the government’s surveillance policies and programs.

“Unfortunately Edward Snowden was the only means by which we have been able to have this debate,” Hoelzer says. “We, working for Senator Wyden, did everything to try to encourage the administration to bring these facts to light. We’re not talking about sources and methods, we’re not talking about sensitive materials, we’re talking about what they believed the law allows them to do.”

As Spencer Ackerman points out in his article, both Chairman Rogers and his ranking Democratic counterpart, Dutch Ruppersberger of Maryland, are “staunch advocates of the NSA bulk surveillance programs.”

This is the government’s definition of “oversight.”

Cross posted from The Stars Hollow Gazette

During his press conference on Friday, President Barack Obama admitted, without giving him credit, that the reason the conversation on the NSA is now taking place is thanks to Edward Snowden.

“The leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board,” Obama said, while adding, “I actually think we would have gotten to the same place-and we would have done so without putting at risk our national security.”

With public opinion rapidly eroding over the surveillance, the president still refused to concede that the program was abused:

“America is not interested in spying on ordinary people,” Obama said. The surveillance programs, he said, were valuable and “should be preserved.” The flaw, if there was one, he said, lay in his assumption that the public would trust that the “checks and balances” in place between the administration, Congress, and the courts was enough to secure personal freedom. Instead, he said, after Snowden’s revelations, “I think people have questions about this program.”

While Obama promised a to create an an independent advisory group made up of “outside experts” who will review controversial surveillance programs, it’s pretty clear that [the group won’t exactly be completely independent of the NSA, as Marcy Wheeler reports:

In the memo Obama just released (pdf) ordering James Clapper to form such a committee, those words “outside” and “independent” disappear entirely.

   I believe it is important to take stock of how these technological advances alter the environment in which we conduct our intelligence mission. To this end, by the authority vested in me as President by the Constitution and the laws of the United States of America, I am directing you to establish a Review Group on Intelligence and Communications Technologies (Review Group).

   The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust. Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013. [my emphasis]

And neither Obama nor the Intelligence Committees get to hear from this Group themselves. It all goes through James Clapper.

And the other group members

President Obama and Director Clapper may solicit advice from notable figures in the technology industry; the president reportedly met with several leaders last Thursday, including Apple CEO Tim Cook and Google VP Vint Cerf. But with both Apple and Google implicated in some level of cooperation with the government under PRISM, the government may need to solicit input from a broader coalition of stakeholders.

So, Obama is putting the liar in charge, asking advice from those who willingly aided and abetted the spying and isn’t going to make the report public but expects this will win over public opinion. Yeah, right. If the public falls for this malarkey, I have a bridge to sell, too.

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

The US is very disappointed with Russia. Russia has granted Edward Snowden temporary asylum for one year and he has left the airport for an undisclosed location.

Edward Snowden asylum: US ‘disappointed’ by Russian decision

by  Alec Luhn in Moscow, Luke Harding, and Paul Lewis in Washington, The Guardian

White House says Moscow should hand back whistleblower and hints Barack Obama might boycott Vladimir Putin meeting

White House spokesman Jay Carney said the US was “extremely disappointed” by the decision, almost certainly taken personally by President Vladimir Putin. He said Moscow should hand Snowden back and hinted that Barack Obama might now boycott a bilateral meeting with Putin in September, due to be held when the US president travels to Russia for a G20 summit. [..]

With US-Russian relations now at a cold war-style low, Snowden slipped out of Sheremetyevo airport on Thursday afternoon. His lawyer, Anatoly Kucherena, said Russia’s federal migration service had granted him temporary asylum for one year. Snowden had left the airport to stay at an undisclosed location with expatriate Americans, he added.

Putin made no immediate comment. But having weighed Russia’s options for some weeks, he appears to have decided that Snowden’s propaganda value outweighs any possible US repercussions. Obama’s already floundering attempts to “reset”, or improve, relations with Moscow are in effect over.

Back on Capitol Hill, senators from both sides of the aisle expressed their dismay over intelligence disclosures of NSA policies.

US senators rail against intelligence disclosures over NSA practices

by Spencer Ackerman, The Guardian

Officials say bulk phone records collection was not ‘the most important tool’ – contradicting previous statements to Congress

Two senators said they now planned to introduce new legislation before the August recess that would significantly transform the transparency and oversight of the bulk surveillance program. The chairman of the committee has already advocated for ending the bulk phone records collection and plans his own legislative push to shut it down.v[..]

Patrick Leahy, a Vermont Democrat and chairman of the Senate judiciary committee, said: “We need straightforward answers, and I’m concerned we’re not getting them.”

Leahy, joined by ranking Republican Chuck Grassley of Iowa, criticised director of national intelligence James Clapper for making untruthful statements to Congress in March about the bulk phone records collection on Americans, and NSA director Keith Alexander for overstating the usefulness of that collection for stopping terrorist attacks.

Grassley called Clapper’s recent apology to senator Ron Wyden and the intelligence community “especially disturbing”.

The Guardian’s Spencer Ackerman and investigative reporter James Branford joined Amy Goodman on Democracy Now! to discuss these latest developments.

Testifying before the Senate on Wednesday, National Security Agency Deputy Director John Inglis conceded that the bulk collection of phone records of millions of Americans under Section 215 of the USA PATRIOT Act has been key in stopping only one terror plot – not the dozens officials had previously said. Ahead of Wednesday’s Senate hearing, the Obama administration released three heavily censored documents related to its surveillance efforts, but the White House has refused to declassify the legal arguments underlying the dragnet or the original rulings by the U.S. Foreign Intelligence Surveillance Court, on which the released order to collect phone records was based. Meanwhile, the head of the NSA, General Keith Alexander, was repeatedly interrupted by critics of government surveillance in a speech Wednesday before the Black Hat conference, a gathering of hackers and cybersecurity professionals in Las Vegas.

How fast the US is fast becoming the 21st century;s Soviet Union.

Cross posted from The Stars Hollow Gazette

As a hearing on reining in the secret surveillance program was taking place, another “tool” in the NSA’s collection of on-line data was revealed to the public.

Senate Panel Presses N.S.A. on Phone Logs

by Charlie Savage and David E. Sanger, The New York Times

Senators of both parties on Wednesday sharply challenged the National Security Agency’s collection of records of all domestic phone calls, even as the latest leaked N.S.A. document provided new details on the way the agency monitors Web browsing around the world.

At a Senate Judiciary Committee hearing, the chairman, Patrick J. Leahy, Democrat of Vermont, accused Obama administration officials of overstating the success of the domestic call log program. He said he had been shown a classified list of “terrorist events” detected through surveillance, and it did not show that “dozens or even several terrorist plots” had been thwarted by the domestic program.

“If this program is not effective it has to end. So far, I’m not convinced by what I’ve seen,” Mr. Leahy said, citing the “massive privacy implications” of keeping records of every American’s domestic calls.

XKeyscore: NSA tool collects ‘nearly everything a user does on the internet’

by Glenn Greenwald, The Guardian

• XKeyscore gives ‘widest-reaching’ collection of online data

• NSA analysts require no prior authorization for searches

• Sweeps up emails, social media activity and browsing history

• NSA’s XKeyscore program – read one of the presentations

A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals, according to documents provided by whistleblower Edward Snowden.

The NSA boasts in training materials that the program, called XKeyscore, is its “widest-reaching” system for developing intelligence from the internet.

The latest revelations will add to the intense public and congressional debate around the extent of NSA surveillance programs. They come as senior intelligence officials testify to the Senate judiciary committee on Wednesday, releasing classified documents in response to the Guardian’s earlier stories on bulk collection of phone records and Fisa surveillance court oversight.

The files shed light on one of Snowden’s most controversial statements, made in his first video interview published by the Guardian on June 10.

“I, sitting at my desk,” said Snowden, could “wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email”.

US officials vehemently denied this specific claim. Mike Rogers, the Republican chairman of the House intelligence committee, said of Snowden’s assertion: “He’s lying. It’s impossible for him to do what he was saying he could do.”

But training materials for XKeyscore detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.

XKeyscore, the documents boast, is the NSA’s “widest reaching” system developing intelligence from computer networks – what the agency calls Digital Network Intelligence (DNI). One presentation claims the program covers “nearly everything a typical user does on the internet”, including the content of emails, websites visited and searches, as well as their metadata.

Analysts can also use XKeyscore and other NSA systems to obtain ongoing “real-time” interception of an individual’s internet activity.

All In host Chris Hayes talks about the new efforts at transparency and the latest NSA revelations courtesy of Edward Snowden with Senator Richard Blumenthal (D-CT) and Glenn Greenwald of The Guardian.

With the crackdown on whistleblowers and failure to pursue the crimes they revealed, one wonders just how far is the US from becoming the Soviet Russia of the 21st century.

Cross posted from The Stars Hollow Gazette

Before last week’s vote on the Amash/Conyer Amendment, that would have stripped financing for the NSA program of unfettered surveillance, the American people were already shifting in how they viewed these programs. Over the weekend Pew conducted another poll showing that the shift is even more stark.

“Overall, 47% say their greater concern about government anti-terrorism policies is that they have gone too far in restricting the average person’s civil liberties, while 35% say they are more concerned that policies have not gone far enough to protect the country. This is the first time in Pew Research polling that more have expressed concern over civil liberties than protection from terrorism since the question was first asked in 2004.”

Major opinion shifts, in the US and Congress, on NSA surveillance and privacy

by Glenn Greenwald, The Guardian

Pew finds that, for the first time since 9/11, Americans are now more worried about civil liberties abuses than terrorism

Perhaps more amazingly still, this shift has infected the US Congress. Following up on last week’s momentous House vote – in which 55% of Democrats and 45% of Republicans defied the White House and their own leadership to vote for the Amash/Conyers amendment to ban the NSA’s bulk phone records collection program – the New York Times has an article this morning which it summarizes on its front page this way:

Click on image to enlarge

The article describes how opposition to the NSA, which the paper says was recently confined to the Congressional “fringes”, has now “built a momentum that even critics say may be unstoppable, drawing support from Republican and Democratic leaders, attracting moderates in both parties and pulling in some of the most respected voices on national security in the House.” [..]

The strategy for the NSA and its Washington defenders for managing these changes is now clear: advocate their own largely meaningless reform to placate this growing sentiment while doing nothing to actually rein in the NSA’s power. “Backers of sweeping surveillance powers now say they recognize that changes are likely, and they are taking steps to make sure they maintain control over the extent of any revisions,” says the NYT.

The primary problem enabling out-of-control NSA spying has long been the Intelligence Committees in both houses of Congress. That’s an ironic twist given that those were the committees created in the wake of the mid-1970s Church Committee to provide rigorous oversight, as a response to the recognition that Executive Branch’s surveillance powers were being radically abused – and would inevitably be abused in the future – without robust transparency and accountability. [..]

The largest changes toward demanding civil liberties protections have occurred among liberal Democrats, Tea Party Republicans, independents and liberal/moderate Republicans. Only self-identified “moderate/conservative Democrats” – the Obama base – remains steadfast and steady in defense of NSA surveillance. The least divided, most-pro-NSA caucus in the House for last week’s vote was the corporatist Blue Dog Democrat caucus, which overwhelmingly voted to protect the NSA’s bulk spying on Americans.

As I’ve repeatedly said, the only ones defending the NSA at this point are the party loyalists and institutional authoritarians in both parties. That’s enough for the moment to control Washington outcomes – as epitomized by the unholy trinity that saved the NSA in the House last week: Pelosi, John Bohener and the Obama White House – but it is clearly not enough to stem the rapidly changing tide of public opinion.

On Sunday, Sen. Ron Wyden (D-OR), one of the harshest critics of the NSA and the FISA court, was a guest on C-Span’s Newsmankers. He called the FISA court “anachronistic” and stated that he is most likely to support overhaul of the secretive court. He was particularly alarmed by the way that the Patriot Act was being interpreted by the federal government in its fight against terrorism.

Cross posted from The Stars Hollow Gazette

On Thursday the White House was mum on whether they would seek renewal of the “secret” court order that allows the NSA to collect the phone records and e-mails of Americans without due process.

Officials declined to discuss what action they intend to take about the order at the center of the current surveillance scandal, which formally expires at 5pm Friday. [..]

On Thursday, the administration would not answer a question first posed by the Guardian six days ago about its intentions to continue, modify or discontinue the Verizon bulk-collection order. The White House referred queries to the Justice Department. “We have no announcement at this time,” said Justice Department spokesman Brian Fallon. The NSA and office of the Director of National Intelligence did not respond to questions.

At a hearing on Wednesday before the House Judiciary Committee, the top lawyer for the director of national intelligence, Robert S Litt, was asked by the chairman, Bob Goodlatte, if the administration thought if a surveillance program “of this magnitude … could be indefinitely kept secret from the American people?”

Litt answered, “well, we tried.”

Since the cat is out of the bag, so to speak, the White House decided on Friday to come clean that they would continue to violate the Fourth Amendment with impunity:

In an unprecedented move prompted by the Guardian’s disclosure in June of the NSA’s indiscriminate collection of Verizon metadata, the Office of the Director of National Intelligence (ODNI) has publicly revealed that the scheme has been extended yet again.

The statement does not mention Verizon by name, nor make clear how long the extension lasts for, but it is likely to span a further three months in line with previous routine orders from the secret Foreign Intelligence Surveillance Court (Fisa). [..]

The decision to go public with the latest Fisa court order is an indication of how the Obama administration has opened up the previously hidden world of mass communications surveillance, however slightly, since former NSA contractor Edward Snowden exposed the scheme to the Guardian.

Earlier on Friday, ODNI lawyer, Litt, told the Brookings Institute that the intelligence chiefs would consider NSA data collection changesbut continued defending the unconstitutional program:

“It is, however, not the only way that we could regulate intelligence collection,” Litt said. “We’re currently working to declassify more information about our activities to inform that discussion,” particularly concerning the bulk collection of Americans’ telephone records. [..]

“That could be a significant problem in a fast-moving investigation where speed and agility are critical, such as the plot to bomb the New York City subways in 2009,” Litt said.

But Litt also noted: “All of the metadata we get under this program is information that the telecommunications companies obtain and keep for their own business purposes.”

He acknowledged in the beginning of his speech: “There is an entirely understandable concern that the government may abuse this power.”

In response to a question about the legality of the program, Litt also suggested that congress could pass a law permitting the NSA to collect the records.

“You’d have to make sure that it enables the kind of flexibility and operational agility that we need to conduct the collection,” Litt said. “We don’t think a new statute is necessary. We think we have the authority. But obviously, if Congress thinks a new statute is appropriate for this, Congress can provide that.”

Brilliant, let’s pass another unconstitutional law. Way to go, Barack.

Cross posted from The Stars Hollow Gazette

If you can’t get congress to abide by the Constitution and its amendments, then resort to a tactic they might fall for, amend the egregious law with the appropriate amendment:

(WASHINGTON, D.C.) – Congressman Alan Grayson (FL-09) submitted an amendment today to the National Defense Authorization Act, which would prohibit the Department of Defense from collecting information on U.S. citizens without probable cause of a terrorism or criminal offense. Grayson’s amendment is a response to recent reports that the National Security Agency (NSA), which falls under the Defense Department, has been secretly collecting the telephone records and the private internet communications of U.S. citizens.

Grayson called these reports “disturbing.” “Without probable cause, there’s no excuse for the NSA to be compiling this type of data on American citizens who have done nothing wrong-particularly without their knowledge,” he said. “This amendment prevents the Defense Department from collecting ANY information about U.S. citizens within the country-no telephone records, no internet records, no physical locations-unless there is probable cause of a terrorism or criminal offense.“

Click on image to enlarge

What digby said:

Hmm. I could swear I’ve heard that somewhere before. Oh wait:

   

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

I can’t wait to see how many members of Congress vote against the 4th Amendment.

This should not be necessary.