In recent days, AT&T, Bell South and Verizon have all issued statements denying that they've handed over phone records to the NSA, as reported by USA today.
There are three possibilities:
1) The USA Today story is inaccurate;
2) The telcos left enough wiggle room in the statements that both the USA Today story and their statements are accurate; or
3) The statements from the telcos are inaccurate.
Ordinarily, a company that conceals their transactions and activities from the public would violate securities law. But an presidential memorandum signed by the President on May 5 allows the Director of National Intelligence, John Negroponte, to authorize a company to conceal activities related to national security. (See 15 U.S.C. 78m(b)(3)(A))
There is no evidence that this executive order has been used by John Negroponte with respect to the telcos. Of course, if it was used, we wouldn't know about it.
NSA killed system that sifted phone data legally
Sources say project was shelved in part because of bureaucratic infighting
By Siobhan Gorman
Sun Reporter
May 17, 2006, 10:27 PM EDT
WASHINGTON -- The National Security Agency developed a pilot program in the late 1990s that would have enabled it to gather and analyze massive amounts of communications data without running afoul of privacy laws. But after the Sept. 11 attacks, it shelved the project -- not because it failed to work -- but because of bureaucratic infighting and a sudden White House expansion of the agency's surveillance powers, according to several intelligence officials.
The agency opted instead to adopt only one component of the program, which produced a far less capable and rigorous program. It remains the backbone of the NSA's warrantless surveillance efforts, tracking domestic and overseas communications from a vast databank of information, and monitoring selected calls.
Four intelligence officials knowledgeable about the program agreed to discuss it with The Sun only if granted anonymity because of the sensitivity of the subject.
The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled together four cutting-edge surveillance tools. ThinThread would have:
* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.
* Identified U.S. phone numbers and other communications data and encrypted them to ensure caller privacy.
* Employed an automated auditing system to monitor how analysts handled the information, in order to prevent misuse and improve efficiency.
* Analyzed the data to identify relationships between callers and chronicle their contacts. Only when evidence of a potential threat had been developed would analysts be able to request decryption of the records.
An agency spokesman declined to discuss NSA operations.
"Given the nature of the work we do, it would be irresponsible to discuss actual or alleged operational issues as it would give those wishing to do harm to the U.S. insight and potentially place Americans in danger," said NSA spokesman Don Weber in a statement to The Sun
"However, it is important to note that NSA takes its legal responsibilities very seriously and operates within the law."
In what intelligence experts describe as rigorous testing of ThinThread in 1998, the project succeeded at each task with high marks. For example, its ability to sort through massive amounts of data to find threat-related communications far surpassed the existing system, sources said. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy.
But the NSA, then headed by Air Force Gen. Michael V. Hayden, opted against both of those tools, as well as the feature that monitored potential abuse of the records. Only the data analysis facet of the program survived and became the basis for the warrantless surveillance program.
The decision, which one official attributed to "turf protection and empire building," has undermined the agency's ability to zero in on potential threats, sources say. In the wake of revelations about the agency's wide gathering of U.S. phone records, they add, ThinThread could have provided a simple solution to privacy concerns.
A number of independent studies, including a classified 2004 report from the Pentagon's inspector-general, in addition to the successful pilot tests, found that the program provided "superior processing, filtering and protection of U.S. citizens, and discovery of important and previously unknown targets," said an intelligence official familiar with the program who described the reports to The Sun. The Pentagon report concluded that ThinThread's ability to sort through data in 2001 was far superior to that of another NSA system in place in 2004, and that the program should be launched and enhanced.
Hayden, the president's nominee to lead the CIA, is to appear Thursday before the Senate Select Committee on Intelligence and is expected to face tough questioning about the warrantless surveillance program, the collection of domestic phone records and other NSA programs.
While the furor over warrantless surveillance, particularly collection of domestic phone records, has raised questions about the legality of the program, there has been little or no discussion about how it might be altered to eliminate such concerns.
ThinThread was designed to address two key challenges: The NSA had more information than it could digest, and, increasingly, its targets were in contact with people in the United States whose calls the agency was prohibited from monitoring.
With the explosion of digital communications, especially phone calls over the Internet and the use of devices such as BlackBerries, the NSA was struggling to sort key nuggets of information from the huge volume of data it took in.
By 1999, as some NSA officials grew increasingly concerned about millennium-related security, ThinThread seemed in position to become an important tool with which the NSA could prevent terrorist attacks. But it was never launched. Neither was it put into effect after the attacks in 2001. Despite its success in tests, ThinThread's information-sorting system was viewed by some in the agency as a competitor to Trailblazer, a $1.2 billion program that was being developed with similar goals. The NSA was committed to Trailblazer, which later ran into trouble and has been essentially abandoned.
Both programs aimed to better sort through the sea of data to find key tips to the next terrorist attack, but Trailblazer had more political support internally because it was initiated by Hayden when he first arrived at the NSA, sources said.
NSA managers did not want to adopt the data-sifting component of ThinThread out of fear that the Trailblazer program would be outperformed and "humiliated," an intelligence official said.
Without ThinThread's data-sifting assets, the warrantless surveillance program was left with a sub-par tool for sniffing out information, and that has diminished the quality of its analysis, according to intelligence officials.
Sources say the NSA's existing system for data-sorting has produced a database clogged with corrupted and useless information.
The mass collection of relatively unsorted data, combined with system flaws that sources say erroneously flag people as suspect, has produced numerous false leads, draining analyst resources, according to two intelligence officials. FBI agents have complained in published reports in The New York Times that NSA leads have resulted in numerous dead ends.
The privacy protections offered by ThinThread were also abandoned in the post-Sept. 11 push by the president for a faster response to terrorism.
Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records -- an authorization that carried no stipulations about identity protection -- agency officials regarded the encryption as an unnecessary step and rejected it, according to two intelligence officials knowledgeable about ThinThread and the warrantless surveillance programs.
"They basically just disabled the [privacy] safeguards," said one intelligence official.
Another, a former top intelligence official, said that without a privacy requirement, "there was no reason to go back to something that was perhaps more difficult to implement."
However two officials familiar with the program said the encryption feature would have been simple to implement. One said the time required would have involved minutes, not hours.
Encryption would have required analysts to be more disciplined in their investigations, however, by forcing them to gather what a court would consider sufficient information to indicate possible terrorist activity before decryption could be authorized.
While it is unclear why the agency dropped the component that monitored for abuse of records, one intelligence official noted that the feature was not popular with analysts. It not only tracked the use of the database, but hunted for the most effective analysis techniques, and some analysts thought it would be used to judge their performance.
Within the NSA, the primary advocate for the ThinThread program was Richard Taylor, who headed the agency's operations division. Taylor who has retired from the NSA, did not return calls seeking comment.
Officials say that after the successful tests of ThinThread in 1998, Taylor argued that the NSA should implement the full program. He later told the 9/11 Commission that ThinThread could have identified the hijackers had it been in place before the attacks, according to an intelligence expert close to the commission.
But at the time, NSA lawyers viewed the program as too aggressive. At that point, the NSA's authority was limited strictly to overseas communications, with the FBI responsible for analyzing domestic calls. The lawyers feared that expanding NSA data collection to include communications in the United States could violate civil liberties, even with the encryption function.
Taylor had an intense meeting with Hayden and NSA lawyers. "It was a very emotional debate," recalled a former intelligence official. "Eventually it was rejected by [NSA] lawyers."
After the 2001 attacks, the NSA lawyers who had blocked the program reversed their position and approved the use of the program without the enhanced technology to sift out terrorist communications and without the encryption protections.
The NSA's new legal analysis was based on the commander in chief's powers during war, said former officials familiar with the program. The Bush administration's defense has rested largely on that argument since the warrantless surveillance program became public in December.
The strength of ThinThread's approach is that by encrypting information on Americans, it is legal regardless of whether the country is at war, according to one intelligence official.
Officials familiar with Thin Thread say some within NSA were stunned by the legal flip-flop. ThinThread "was designed very carefully from a legal point of view, so that even in non-wartime, you could have done it legitimately," the official said.
In a speech in January, Hayden said the warrantless surveillance program was not only limited to al-Qaida communications, but carefully implemented with an eye toward preserving the Constitution and rights of Americans.
"As the director, I was the one responsible to ensure that this program was limited in its scope and disciplined in its application," he said.
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Monday, May 22, 2006
Imprisoning journalists
Other than the fact that the President believes that he has the power to break the law and has been continuously exercising that power, the issue about which I've written most on this blog is the sweeping and dangerous attacks by this administration on investigative journalism. Those two issues are quite related, as the latter is intended to conceal and thus enable the former.
The administration's assault on a free and vital press took a huge leap forward this weekend, when Attorney General Alberto Gonazles announced on national television that the Bush administration has the power to imprison journalists who publish stories revealing conduct by the President which the administration wants to conceal (such as the warrantless NSA eavesdropping program, which he specifically cited). Gonazles went further and made clear that the administration is actively considering prosecution against journalists who publish such stories. The video is here.
It really is hard to imagine any measures which pose a greater and more direct danger to our freedoms than the issuance of threats like this by the administration against the press. If the President has the power to keep secret any information he wants simply by classifying it -- including information regarding illegal or otherwise improper actions he has taken -- then the President, by definition, has complete control over the flow of information which Americans receive about their Government.
An aggressive and adversarial press in our country was intended by the founders to be one of the most critical checks on abuses of presidential power, every bit as much as Congress and the courts were created as checks. Jefferson said: "If I had to choose between government without newspapers, and newspapers without government, I wouldn't hesitate to choose the latter." The only reason the Founders bothered to guarantee a free press in First Amendment is because the press was intended to serve as a check against Government power.
And the only reason, in turn, that the press is a check against the Government is because it searches for and then discloses information which the Government wants to keep secret. That is what investigative journalism, by definition, does. The Government always wants to conceal its wrongdoing from the public, and the principal safeguard in this country against that behavior is an adversarial press, which is devoted to uncovering such conduct and disclosing it to the country.
Virtually every issue of political controversy during the Bush administration has been the result of the disclosure to a journalist by a concerned Government source that the administration is engaging in illegal, improper and/or highly controversial conduct. Whatever criticisms one wants to make of the American press -- and such criticisms are numerous -- it is still the case that what we do know about this Administration's conduct is the result of the press. Literally, if George Bush had his way -- if government sources were sufficiently intimidated out of disclosing classified information and journalists were sufficiently intimidated out of writing about it -- we would not know about any of these matters:
* Abu Ghraib
* The Bybee Torture Memorandum
* The use of torture as an interrogation tool
* The illegal eavesdropping on Americans without warrants
* The creation of secret gulags in Eastern Europe
* The existence of abundant pre-war information undermining and even negating the administration's WMD claims
* Policies of rendering prisoners to the worst human rights-abusing countries
Our Government would be engaging in all of this conduct, and worse. But we would not know about any of it. We would just be going merrily along our way, completely ignorant of the fact that the Bush administration has undertaken the most unimaginably radical and disturbing conduct in the name of the United States. We would all be Hugh Hewitt and John Hinderaker -- incapable of doing anything other than obediently praising the Commander-in-Chief and reciting the view of the world which the administration wants us to have because we would not know any better.
If this world were implemented, the only information about the Government which we would have is the information which the Bush administration wants us to have -- i.e., information which reflects well on it and which enhances the Glory of the president. Any information which reflects poorly on the president or which reveals any of his controversial and improper behavior would be concealed.
The only "leaked" information which we would ever hear is information which bolsters the administration's views (such as pre-war claims by Ahmed Chalabi about the existence of Iraqi chemical weapons) or which depicts the President as Our Hero and Protector (like the time he saved the "Liberty Tower" from destruction, or the way he ordered an innovative high-tech scheme to detect unusual levels of radiation in our neighborhood mosques). But leaks which the administration doesn't want us to know because they politically harm the president would never happen because those who are privy to such information (government employees and journalists alike) would be too fearful of criminal prosecution to inform us about it.
That is what this is all about. There is not a single instance -- not one -- which reflects any harm to our national security as a result of any of these disclosures. The press goes out of its way to avoid disclosing information which could harm national security -- the Times concealed all operational details of the NSA program when it disclosed that the President was eavesdropping without warrants and the Post concealed the location of the secret gulags in Eastern Europe when reporting that they existed. These disclosures trigger public debate over highly controversial matters and, as a result, often harm the President politically. But none of them is an example of gratuitous disclosure of secret information intended to harm national security.
That is how our country has operated for at least the last century, through two world wars and scores of other military conflicts. The press reports classified information to the extent that doing so brings to the public's attention legitimate matters of political debate, and it exercises self-restraint by concealing information which could harm national security and which is unnecessary for the debate to be had. And unlike many other countries whom we have never (until now) aspired to copy, we do not threaten journalists with prison or prosecute them for publishing such stories, precisely because that conduct is a critical and necessary component of the checks and balances which preserve liberty in our country.
It ought to go without saying that the press cannot serve as a check against the Executive branch if the only information it publishes is information which the President wants it to publish. Then the press becomes Pravda, existing solely to pass along information to citizens which the Government wants it to convey. That's the world where the administration wants Americans to believe that we have to wage war against Iraq to rid it of its WMDs, and so selectively "leaks" to Judith Miller the information which bolsters that claim while concealing the information which undermines it. And the Government's claims then are printed on the front page of The New York Times under the guise of independent reporting, without any contrary information being disclosed.
When the Government can control which information is disclosed and which information is concealed, newspapers become a government propaganda venue -- an arm of the Government -- rather than any meaningful check on it. I've cited this Jefferson warning several times before, and included it in my book, because it is so prescient and so self-evidently applicable to the Bush administration:
"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."
There simply is no American president, at least in the last century, who has waged war against a free press the way George Bush has. Not even close. Not even Richard Nixon, who hated the press with a consuming passion, tried to imprison journalists. And there is a reason why the Bush administration has as its highest priority these attacks on the press. And Jefferson told us the reason why: because the press is the "first shut up by those who fear the investigation of their actions."
Even during World War I, the Congress refused to include in the Espionage Act of 1917 a provision which Woodrow Wilson wanted to allow criminal prosecution against any journalists who -- in a time of war -- disclosed information which the President deemed to be "of such character that it is or might be useful to the enemy." (h/t Cynic Librarian). The debate regarding that amendment makes abundantly clear that it was rejected because the grave dangers from stifling an aggressive and free press -- even during war -- far outweigh the "benefits" of eliminating one of the sole checks on the Government's ability to control the flow of information.
Why were we able to defend our national security throughout the 20th Century without imprisoning journalists? Why have we suddenly reached a point where our Government is too weak to defend our country without trying to stifle a free press by threatening journalists with imprisonment? Why can't George Bush defend the country without destroying almost every traditional institution and practice in our country to which presidential administrations of both parties have, for decades if not longer, managed to adhere?
A prohibition on imprisoning journalists for fulfilling the function which the Founders intended is just another defining tradition and principle of our country which the Bush administration is attempting to dismantle. Whether they actually prosecute journalists or not, the threat to do so -- combined with the knowledge that they possess the means to investigate their telephone calls -- by itself has a highly damaging deterrent effect on vigorous investigative journalism. This administration is obsessed with eliminating the few remaining checks on their ability to operate in secret, and there is nothing which can advance that goal more than official threats of imprisonment of journalists -- which, as amazing as it is, is exactly what happened this weekend.
UPDATE: One of the most striking aspects of these escalating attacks on the press is just how silent the major media outlets are about any of this. The Attorney General threatened journalists with prison this weekend on national television. Shouldn't the Times and the Post be editorializing against those threats, at the very least? And yet, from what I've seen today, no newspaper has published an editorial response to the administration. Just silence.
Media Reports Gonzales' Misleading Legal Analysis on NSA Program, Ignores All Opposing Views
Attorney General Alberto Gonzales won't confirm that the federal government collected the phone records of millions of Americans, as reported on May 11 in USA Today. But yesterday, Gonzales claimed that doing so was perfectly legal. From the Washington Post:
Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business recordsÂ…Gonzales told reporters that, under the Smith v. Maryland ruling, "those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."
This is a classic case of misdirection. The issue isn't simply whether or not collecting domestic phone records is constitutional. The issue is whether it's legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.
Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:
1. The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.
2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken.
The Washington Post story on Gonzales' comments, however, doesn't mention the Stored Communications Act or the Foreign Intelligence Surveillance Act. For that matter, it doesn't include any legal analysis from anyone other than Gonzales.
