NSA Spins to the House Intelligence Committee (Open Thread)

© Miri WTPOTUS June 18, 2013

Today we were treated to a hearing during which General Keith B. Alexander of the National Security Agency (NSA) tried once again to explain to We the People why we shouldn’t be concerned that the NSA stores metadata from all of our phone calls.  Also testifying were representatives from the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). This was basically a propaganda operation combined with a love fest, with much parsing thrown in.  During opening statements, we were assured by committee members and witnesses alike that “safeguards” are in place to secure the information. [Would those be the very same safeguards that did not prevent low-level, undereducated “system administrator” Edward Joseph Snowden from copying and disseminating top secret documents to the entire world?]

We were told by Committee Chairman Mike Rogers that We the People now have a “false impression” about these programs that are necessary to protect us and to find enemies both inside and outside our country.  [Would those be the very same programs that failed to catch the admitted leaker Edward Snowden?]

Alexander said that We the People made “assumptions” based upon “incomplete and inaccurate” information that has no “context”.  He assured us that protections are in place to preserve our privacy and civil liberties.  Alexander claimed that 9/11 may have been prevented had Section 215 of the Patriot Act been in effect in 2001.

Over 50 times, Alexander claimed, attacks have been prevented via the use of Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act (FISA, aka Prism). These 50 cases (of which about 10 were planned domestic events) will be documented tomorrow, in a secret session with the Committee.

Alexander stressed again that the programs are necessary to protect the U.S. and its allies and “connect the dots,” as they were expected to do, but couldn’t do, before 9/11.  He assured us that their efforts are legal, limited, focused, and subject to oversight by all three branches of government, and that the NSA’s people are well trained to protect privacy and civil liberties.  These assurances were echoed by Deputy Attorney General  James Cole of the DOJ.  [It was Cole who authorized the controversial and sweeping subpoena of AP phone records, which involved even calls made to and from phones in the U.S. Capitol.]

Cole stated that they collect only metadata on phone calls–no personal identifications, no addresses, no locations, no conversations.  [However, he failed to mention that anybody can use an Internet search to find the identity associated with MOST telephone numbers.]  He said that they can obtain nothing more than what is available to any Grand Jury, such as “tangible” business records collected under Section 215 of the Patriot Act (contracts, phone metadata, purchase orders).

To use the data, agencies must obtain special permission from the FISA court based upon “reasonable suspicion” that a person has proven “terrorist involvement.”   If the target is a U.S. citizen, then they need more “independent evidence” beyond words spoken as the subject exercises his First Amendment rights, presumably explaining why they failed to identify and stop Islamic jihadist Nidal Malik Hasan before he murdered 13 in the course of “workplace violence.” Cole claimed that the Fourth Amendment does not apply to metadata, as courts have ruled that We the People have no “expectation of privacy” about such data.

We heard that specially trained people document all access to the database and that there’s an audit trail of queries.  Information extracted (after getting FISA court permission) must be limited, and its use is limited, as well.

However, the testifiers admitted that there “may be mistakes” and information about U.S. citizens might be accidentally obtained, such as via a typo. [We’ve heard this familiar excuse before.]  In case of such a mistake, then this must be reported to both the FISA court and Congress.

The FISA court and Congress are also said to receive the DOJ’s interpretation of any section of these bills. [We’ve yet to see their interpretations and the justifications for their actions.  Those are “secret”, too.]

Section 702 of FISA allows them, with court permission, to collect “content” of communications only if the target is not a U.S. citizen (or legal resident) AND is currently outside of the USA.  The government is specifically prohibited from trying to do an end run around the law via “reverse targeting”.  This means that they can’t pretend to be monitoring a foreigner who communicates with a U.S. citizen or legal resident within the USA in order to actually target the person in the USA.  [And how is that policed?]

Once given permission from the FISA court, they can target the individual for as long as a year, but they cannot monitor any conversations conducted wholly within the USA; and they must cease monitoring if the target enters the USA.

If they accidentally obtain information that they should not have obtained, they must destroy it.  In addition, collected data is purged on a regular basis.  In subsequent questioning, Representative Michele Bachmann was told that data is purged within five years, and that the companies themselves keep the data for much shorter time periods–typically 6 to 18 months.

John Chris Inglis of the NSA stated that fewer than 300 authorized queries of Section 215 metadata happened in all of  2012.  Only 22 individuals (2 of them supervisors) are authorized to query the database, and only 7 officers in the NSA can “disseminate” information elsewhere, most often to the FBI.

Alexander stated that the NSA does NOT get information directly from company servers.  Companies are “compelled” under Section 702 of FISA to give the data to the government. [This article has an interesting and pertinent explanation for why the word compel was specifically used.  They gave retroactive amnesty to complicit tech companies for prior illegal cooperation.  Note the Schrödinger’s catlike argument that the data isn’t “collected” until it’s observed–it’s simultaneously legal and illegal.  Nice trick!]

Alexander stressed that the USA doesn’t do anything more than other countries do and that the USA has far more controls and protects its citizens’ privacy far better than do other countries. [Who cares?  Our standard is the Constitution, not how we measure up against countries whose systems of government can’t hold a candle to the United States of America when it comes to individual liberty.]

Robert Litt, NSA’s general counsel, said that formerly there were no limits on how this data was collected and used, but now standards are actually tighter than in the past.  It’s a “misconception” that the FISA court is a rubber stamp.  Our misconception exists because we don’t see the back and forth that goes on between the FISA court’s staff and the executive branch of government in the process of “perfecting” the request.  In the end, by the time the request is perfected, it’s able to be approved by the court, which is why the statistics make the court appear to be a “rubber stamp” for all requests. [However, Litt gave no indication of how many requests, if any, failed to achieve this reputed perfection.]

Be assured that there is “rigorous oversight” of the process by the DOJ, NSA, the FISA court, Congress, as well as Director of National Intelligence James Clapper [the latter being especially reassuring.  Not!]

Litt said that these programs are important to protect us from terrorists and “other threats” [which leads one to wonder what other threats those may be. Tea Partiers, e.g.?] Litt said that we don’t yet know what the effects of Snowden’s leaks will be.

Alexander was asked whether the NSA can flip a switch and listen to conversations or read our email at will. He answered, “No.”  He echoed Litt by stating that the FISA court is not a rubber stamp and that the judges are “superb.”  [Trust them.]

Representative Dutch Ruppersberger wanted to know how this happened–how Snowden could access such top secret information.  Alexander responded that they’re “working on” a system to install a “two-person rule” [which leads anyone with common sense to wonder why this wouldn’t already be in place, designed into the system as it was created].   Alexander said that a two-person system is a “work in progress” and repeatedly stated, in effect, that they want to find out what went wrong and fix the problem so it doesn’t happen again.  [The only thing missing was that he didn’t say, “What difference, at this point, does it make?”]

Alexander could not explain what Snowden meant when he said that Congress gets special “immunity” from the NSA spying activities, while others do not.  [My take on Snowden’s blathering: he’s upset that We the People have more privacy rights than do foreigners who are targets of spying by our government. Cry me a river.]

In responding to questions from the committee, the testifiers seemed to conflate sections of two different laws, perhaps deliberately so.  Section 215 of the Patriot Act allows the government to collect information about citizens that involves no “expectation of privacy.”  In other words, it’s already been exposed to a third party, such as the phone company or a library.   Section 702 of the FISA, however, requires that all information collected be specifically targeted to foreigners engaged in terrorist activities outside of the USA and can be obtained only via a special permission from the FISA court.   A question from Representative Jeff Miller elicited the fact that the FBI initiates the applications to the FISA court and Attorney General Eric Holder or a deputy signs off on every one.

Cole replied to a question:  Has any disciplinary action ever been taken after “inadvertent” access.  Response: No, because there was no evidence of any deliberate access.  All “mistakes” were the result of “typos” or other technical “errors”.  Nothing “intentional” has ever been found. [Sounds very familiar.  “Mistakes were made.”  Let’s investigate, find out what went wrong, and then move on.  The mantra of the Obama administration.]

Representative Jan Schakowsky asked questions from which we learned that as many as 1000 individuals around the world hold the same position that Snowden did.  The majority of them work as contractors.  All of them hold the same clearance that Snowden had.  Cole told her that the laws require a court order for the government to obtain email content, but that business records, such as customer data, are available under Section 215 of the Patriot Act.  Alexander told her that a systems administrator like Snowden helps run the network but doesn’t have access to the data contained in it. [Except for the top secret documents that he apparently did have access to.]

Litt stated to Representative Mike Conaway that the NSA is able to purge all data, including backups, during their “rolling 5-year purge” of information.  There’s a comprehensive system set up to overwrite data and all backups are destroyed. [Trust them. It’s unclear whether this purge concerns results of the queries and any information collected under Section 702 of FISA, or records in all of the various and numerous databases.]

Representative Adam Schiff told the panel that his constituents would be far more comfortable with all of this data staying at the various companies and not being stored in a huge government system.  Alexander responded that they are “looking” at that possibility but then they would need a way to compel the companies to retain and store all the information.

Representative Devin Nunes brought up Benghazi, Fast and Furious, the AP and James Rosen phone record cases, Holder‘s lack of credibility, and that the IRS  released citizens’ private information to political opponents.  All these led to the administration’s “damaged reputation.” He asked: How we can know that the NSA isn’t similarly leaking private information to others? How do we know they can’t just “flip a switch” and “listen in” to anyone at will?

Alexander assured him that all dissemination of information and querying of the database is 100% “audit-able.”  [Trust them!  So how, exactly, did Snowden get away with those documents?]

Alexander said that “honest mistakes” have been made, but they fixed these by tightening or adding technical controls.  In addition, they have “tremendous training” for their employees. [Well, that worked well with Snowden! Seems that these “honest mistakes,” which have now been publicly admitted to, require investigation themselves, in order to assure us that they were indeed “honest” and “mistakes.”]

Inglis responded to the same question by pointing out that their employees “take an oath to the Constitution.”  [Seems to me that spies lie by definition.  What good is an oath from a spy?  Snowden swore, too.   As did Bradley Manning, for that matter.]

In response to a question from Representative Terri Sewell, Alexander said that there’s an “ongoing investigation” into the Snowden leak, and Snowden had no access to the collected data.

Representative Lynn Westmoreland brought up the James Rosen case and how the justification for the warrant for Rosen’s records was flimsy.  Cole seemed to say that under the FISA court system, it wouldn’t be as easy for Holder to allege a person is a co-conspirator and that in the Rosen case, it was only metadata. The NSA was not contacted about the Rosen case. [Why not, if it was a case of a co-conspirator leaking classified information?]

In response to a question about why Snowden wasn’t on some probationary status, Alexander revealed that Snowden had worked for the NSA for 12 months prior to his short time at Booz Hamilton.  Litt said that Snowden is not as familiar with these programs as he believes that he is.

Representative Jim Himes reiterated that the programs are legal and that controls are in place; however, he expressed concerns about the “breadth” and “scope” of what’s collected on everyone.  If the capability exists for abuse, how do they prevent abuse?

In what was probably the best line uttered during the entire hearing, Himes said that with Snowden’s scanty resume, he wouldn’t have been able to get “an unpaid internship” in Himes’s office. 

How do they know Snowden wouldn’t have accessed the metadata?  How would they have prevented him?  Where do you draw the line on this?   Can they get video data, too?  If so, do they keep it and store it somewhere?  How do we know that they can’t “reconstruct” Himes’s day by putting together all these pieces?   Even “stipulating” that their controls are “perfect,” where is the LIMIT on what they can collect and store? [All the previous are paraphrases of Himes’s questions.]

Alexander assured Himes that nobody can query his phone number to determine, for example, that he was at a bar last night. People would have to break multiple laws to do it, and they would be caught by an audit. [How so?  They didn’t catch Snowden accessing and copying top secret documents.  The State Dept. didn’t catch an employee of John O. Brennan’s contracting company accessing passport records–not in enough time to stop the alleged “cauterization” of Barack Obama’s files.  Of what use is after-the-fact auditing?]

Alexander was asked to grade the relative importance of the programs, with regard to how they contributed to preventing more than 50 attacks.  He could not publicly state that, but for these programs, the attacks would have happened.

Representative Michele Bachmann asked the most hard-hitting questions.  [These aren’t verbatim quotes; they come from my notes, which may not be perfect. I didn’t catch the identities of all the responders.  There should be a transcript eventually; then we’ll learn how accurate my notes are.] Bachmann asked:

Do companies have a choice to participate?  Answer: No, a court order compels them. [Remember that retroactive justification for prior illegal complicity.]

Is the NSA spying on U.S. citizens today, or have they ever in the past spied on U.S. citizens?  Answer: No, not without a warrant from the court.

Do they listen in to any citizen’s phone calls or read their emails or text messages?  Answer: No, not without a warrant from the court.

Have they ever tracked enemies of this administration?  Answer: No. [What would you expect for an answer?]

Do they keep video data on citizens?  Answer: No. The NSA doesn’t hold such data; it’s held by the companies that generated it, such as stores with security cameras, as in Boston. [Does this “no” mean that they don’t keep biometrics like facial recognition data anywhere?]

Is there a database storing video anywhere in the government? Answer: No.

Is there any database that stores GPS data?  Answer: No.

Is there any NSA database that stores contents of calls?  Answer:  No, they’re not authorized to do this, nor do they do it.

Is there any NSA database that stores all emails?  Answer: No.

Is there any NSA database of all text messages?  Answer: No.

[Which begs the question: What, then, is, or is destined to be stored, at the Utah Data Center?]

One of the last statements Alexander made today was to say that the NSA is not data mining, nor are any computer programs running constantly in real time to pull together data.  Using phrases that he used many times today, Alexander said that the NSA is “not authorized” to data mine and they’re “not doing it.” [How do we know? How CAN we know, when this administration’s people have misled, prevaricated, obfuscated, and parsed when testifying to Congress, our representatives?]

Multiple times in the recent past, Alexander has carefully parsed his words to publicly deny that the NSA keeps records on millions of Americans.

On July 9, 2012, when asked by a member of the press if a large data center in Utah was used to store data on American citizens, Alexander stated, “No. While I can’t go into all the details on the Utah data center, we don’t hold data on U.S. citizens.”^[11]

In March 2012, in response to questions during a U.S. congressional hearing from Representative Hank Johnson about allegations made by former NSA officials that the NSA engages in collection of voice and digital information of U.S. citizens Alexander was asked in a number of ways, and replied that, despite the allegations of “James Bashford” [sic] in Wired, the NSA does not collect that data.^[12]

At DEF CON 2012, Alexander was the keynote speaker; during the question and answers session, in response to the question “Does the NSA really keep a file on everyone, and if so, how can I see mine?” Alexander replied “Our job is foreign intelligence” and that “Those who would want to weave the story that we have millions or hundreds of millions of dossiers on people, is absolutely false…From my perspective, this is absolute nonsense.”^[12]

On June 6, 2013, the Director of National Intelligence James Clapper released a statement admitting the NSA collects telephony metadata on millions of Americans telephone calls.^[13] This metadata information included originating and terminating telephone number, telephone calling card number, IMEI number, time and duration of phone calls.^[14]

Andy Greenberg of Forbes said that NSA officials, including Alexander, in the years 2012 and 2013 “publicly denied–often with carefully hedged words–participating in the kind of snooping on Americans that has since become nearly undeniable.”^[12]

I don’t know about you, but I do NOT feel reassured after this hearing.  We do not know these answers:

1. Where is all this data now?

2. How do they prevent access to it by anyone–government employees, contract employees, spies, hackers, the Red Chinese, political operatives, among many others?  (We’re just supposed to trust them, apparently.)

3. Is this data “online”, meaning can it be hacked from remote locations?

4. When is the data destroyed, how is it destroyed, what data is destroyed, and how do we confirm that it has been destroyed?

5. What happens to the data before it’s destroyed? (Is it copied and disseminated elsewhere, e.g.? Perhaps to be held by another country, like “renditioned” data?)

6. How did Snowden manage to access, copy, and get away with top secret documents?

7. What is the purpose of the Utah Data Center?

8. How do they propose to prevent hiring another infiltrator like Snowden?

By the way, isn’t it curious that his name is Snowden, the same name as a character from the book Catch-22, who, as Kathleen Parker pointed out, “literally spills his guts?” Joseph Heller wrote:

Man was matter, that was Snowden’s secret. Drop him out a window and he’ll fall. Set fire to him and he’ll burn. Bury him and he’ll rot, like other kinds of garbage. The spirit gone, man is garbage.

Garbage in; garbage out. An old IT proverb.  Like Snowden’s soul, is our spirit gone now?  Are We the People reduced to nothing more than zeroes and ones–bits of data stored at the Utah Data Center? Is that the living Snowden’s real secret?

More reading here, for those who are interested in other recently revealed programs: Mainway (phone metadata including locations), Marina (Internet contacts with locations included, supposedly only on foreigners), and Nucleon (phone call content).  These are in addition to Prism (Internet content that’s supposed to be restricted to foreigners).

Sean M. Joyce of the FBI also testified, although I apparently didn’t single out any of his comments.

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