– New docs show how Reagan-era executive order unbounded NSA (Ars Technica, Sep 30, 2014):
Newly declassified info sheds light on EO 12333 and the feds’ obscuring tactics.
A set of newly declassified documents shows definitively and explicitly that the United States intelligence community relies heavily on what is effectively unchecked presidential authority to conduct surveillance operations, as manifested through the Reagan-era Executive Order (EO) 12333.
And at a more basic level, the new documents illustrate that the government is adept at creating obscure legalistic definitions of plain language words, like “collection of information,” which help obfuscate the public’s understanding of the scope and scale of such a dragnet.
The documents were first published on Monday by the American Civil Liberties Union (ACLU) after the group filed a Freedom of Information Act lawsuit with the Media Freedom and Information Access Clinic at Yale Law School.
As Ars reported previously, “twelve triple three” is a presidential order that spells out the National Security Agency’s authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W. Bush. Famously, the NSA expanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.
“These documents are a good first step to understanding how EO 12333 is being used,” Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, told Ars. “We already know that it’s used in a very similar manner to Section 702 of the Foreign Intelligence Surveillance Act, which is being used as part of collection techniques that collect wholly domestic (American) e-mail. We also know [EO 12333 is] used for the NSA’s interception of Internet traffic between Google’s and Yahoo!’s data centers abroad, the collection of millions of e-mail and instant message address books, the recording of the contents of every phone call made in at least two countries, and the mass cell phone location-tracking program. The NSA—and the White House—must release more material on EO 12333. The President has encouraged a public discussion on the NSA’s signals intelligence activities. He must follow through with ensuring an open, and honest, debate on EO 12333 activities.”
“The primary source” of the NSA’s legal power
In a rare instance of clarity and precision, a “legal fact sheet” authored by the NSA and dated June 19, 2013 explains various elements of EO 12333.
FISA only regulates a subset of NSA’s signals intelligence activities.
NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 12333.
Since 1981, EO 12333 has provided the President’s authoritative written instruction for the organization and operation of the United States Intelligence Community (IC).
An internal training document for a course taught with the NSA entitled “Overview of Signals Intelligence (SIGINT) Authorities” notes that:
Executive Order 12333 was issued by the President of the United States to provide for the effective conduct of US intelligence activities and the protection of the rights of US persons. It is the primary source of NSA’s foreign intelligence-gathering authority.
Executive Order 12333 governs foreign intelligence activities across the Intelligence Community. Derivative documents such as DoD Regulation 5240.1-R, NSA/CSS Policy 1-23, and USSID SP0018 establish policies and procedures consistent with Executive Order 12333.
Under Executive Order 12333, NSA collects, processes, analyzes, produces, and disseminates signals intelligence information and data. These activities are approved for foreign intelligence purposes, counterintelligence purposes, and for the conduct of military operations.
Included in this set of documents is a previously released 74-page memo (dated May 6, 2004) to the attorney general to outline the legality of the President’s Surveillance Program. The older, publicly released version has substantial redactions. The newly released version unredacts the already known name of the program, “Stellar Wind.” Both versions, which appear to be otherwise identical, also contain this noteworthy section:
The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of this authority.
The new trove of documents also contains an extremely heavily redacted document entitled “Memorandum for the Attorney General” (dated November 4, 2001) from John Yoo, the then-deputy assistant attorney general, to John Ashcroft, the then-attorney general.
Among the rare lines that are not blacked out are these:
Thus, unless Congress made a clear statement in [the Foreign Intelligence Surveillance Act] that it sought to restrict presidential authority to conduct warrantless searches in the national security area—which it has not—then the statute must be construed to avoid such a reading.
We do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.
Yoo, who is now a law professor at the University of California, Berkeley, did not immediately respond to Ars’ request for comment.
Thirty-year NSA veteran William Binney previously told Ars that drastic measures such as the NSA’s Fairview program—described by other intelligence whistleblowers as the NSA’s project to “own the Internet”—are authorized under EO 12333. When pointed to these new documents obtained by the ACLU, he expressed nonchalance.
“We have known for quite some time that they have been using EO 12333 paragraph 2.3.C to collect approximately 80 percent of all US-to-US phone calls and Internet data, and that Fairview is the main program to do this,” he told Ars on Monday. “So no surprise there.”
What exactly is “collecting?”
The new documents show that the government is twisting words with obvious English meanings to fit strange definitions. In an August 2004 “Intelligence Law Handbook” produced by the Defense Intelligence Agency (DIA), the agency tells its officers that “it is necessary to stop first and adjust your vocabulary” in order to understand the Department of Defense’s 64-page implementation of EO 12333, known as DoD 5240.1-R.
The Handbook states that “collecting” information doesn’t fit our traditional understanding. Rather, information can have been said to be collected…
only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties … (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information.
For the purposes of DoD 5240.1-R, “collection” is officially gathering or receiving information, plus an affirmative act in the direction of use or retention of that information. For example, information received from a cooperating source (e.g., the FBI) about a terrorist group is not “collected” unless and until that information is included in a report, entered into a data base, or used in some other manner which constitutes an affirmative intent to use or retain that information.
This is par for the course, according to Binney.
“No surprise with the word game; we have had direct experience with that game for decades,” he added. “This all means that no one can trust the [Department of Justice] or [intelligence community] agencies NSA/CIA/DIA/FBI/etc. to tell the truth to anybody. That’s why we suggested that the Congress/courts needed a way to verify what they were being told. That has been ignored.”
John Tye, a former State Department official who has spoken out publicly about EO 12333 and who was briefed by the NSA on two occasions during his tenure, told Ars by e-mail on Monday that the “NSA plays a lot of word games.”
“The DIA document shows that for the NSA, ‘collection’ of your e-mails doesn’t mean what you think it means. It means something totally different,” he said. “They want to be able to say they’re not ‘collecting’ your data, so they claim that even though they copied all your e-mails, put them in a server for five years, and searched them at will, that’s not ‘collection’ because your e-mail didn’t go into a report.”
“The NSA plays the same games with all of the words they use—they say you are not a ‘target,’ even though they collect, store and search all your data,” Tye continued. “They say your data is collected only ‘incidentally,’ even though the NSA intentionally designs its programs to collect everything you do online. They say your data is not collected ‘under this program,’ which almost certainly means it is collected under some other program. The NSA says things, using some very tortured and legalistic definitions, which are technically true but designed to mislead Americans about how it collects and uses our data. The NSA’s collection and use of Americans’ data would never stand up to any kind of public scrutiny or judicial review. The only way these programs survive is because they are shielded from review and oversight and challenge in the courts.”
Ed Loomis, a cryptologist at the NSA from 1964 to October 2001 who later became a whistleblower, previously told Ars that every year, everyone working in the SIGINT division had to read EO 12333, FISA, and US SIGINT Directive 18 (July 1993) as a way to keep refreshed on the laws. But he said that during his last month at the agency, this narrow legalistic approach became de rigueur.
“The redefinition of words associated with collection took place post September 11,” he also told Ars by e-mail on Monday. “It’s my observation that it was done to skirt congressional intent behind FISA. The distortion of the definition of ‘collection’ was not restricted to just DIA. It also applied to NSA where material is not considered to have been ‘collected’ until an analyst examines it and issues an intelligence report referencing it.”
One of Edward Snowden’s attorneys, Jesselyn Radack, told Ars that this is “classic intel-speak.”
“This semantic game of defining words or terms in a way that defies their dictionary-meaning can be seen back in 2012, when NSA Director Keith Alexander told Congress that NSA did not routinely ‘intercept’ American citizens’ e-mails, cell phone conversations, Google searches, and text messages,” Radack said. “Alexander’s definition of ‘intercept’ was clearly different than to collect, store, and search—all of which we’ve learned since Snowden (and [other whistleblowers like] Binney before him) that the NSA is actually doing.”
Even one former federal judge, who was in charge of approving various forms of digital surveillance on suspects, says that this narrow understanding doesn’t make logical—much less legal—sense.
“This definition of ‘collection’ strikes me as odd in this day and age,” Brian Owsley, now a law professor at Indiana Tech, told Ars. “How is the information transferred? If by secured e-mail, it is stored somewhere. If by thumb drive, it leaves some footprint on the computer. In other words, I would have to see an example of something that is provided to the NSA by another intelligence gathering agency that is not collected. I think it all would be at some point.”