Wyden: We Proved that “Unique” and “Vital” Information Wasn’t in 2011

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I should have some analysis on the documents James Clapper released yesterday.

But it’s worth pointing to Ron Wyden’s analysis. He notes that the two documents on bulk collection programs — one from 2009 and one from 2011, both of which covered the Internet and phone metadata programs — both boasted of how unique and valuable the information was.

The briefing documents that were provided to Congress in December 2009 and February 2011 clearly stated that both the bulk email records and bulk phone records collection programs were “unique in that they can produce intelligence not otherwise available to NSA.” The 2009 briefing document went on to state that the two programs “provide a vital capability to the Intelligence Community,” and the 2011 briefing document stated that they provided “an important capability.”

The problem is, by the end of 2011, Wyden and Mark Udall had been able to prove that the Intelligence Community had oversold the value of the Internet metadata program, which led to its termination.

Senator Mark Udall and I have long been concerned about the impact of bulk collection on Americans’ privacy and civil liberties, and we spent a significant portion of 2011 pressing the Intelligence Community to provide evidence to support the claims that they had made about the bulk email records program. They were unable to do so, and the program was shut down due to a lack of operational value, as senior intelligence officials have now publicly confirmed.

This experience demonstrated that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate.

So while the government thought these documents would prove how controlled these programs are (aspects of them don’t), Wyden demonstrates that they show the IC lies about the usefulness of programs when they talk to Congress about them.

Which is, Patrick Leahy suggested in yesterday’s hearing, what the IC appears to be doing when invoking 54 plots to justify the 215 phone dragnet, which has only been tied to 12 plots.

Which is an interesting dynamic to proceed today’s meeting between Obama, Wyden, Udall, Dianne Feinstein, Saxby Chambliss, Bob Goodlatte, James Sensenbrenner, Dutch Ruppersberger, and Mike Rogers.

The presence of Sensenbrenner is key: to the extent they still exist, he’s a mainstream Republican. And he’s furious about the 215 program that he himself shepherded through Congress in 2006. So I would assume today’s meeting is an effort to develop the White House’s plan to phase out the dragnet.

All that said, Obama has clearly gamed the results, by inviting more of the surveillance champions than he did critics (and apparently House Democrats don’t count anymore).

Obama probably won’t see this through his bubble, but the day before this meeting Wyden demonstrated that the basis for the rosy tales DiFi and the other Gang of Four members are telling are claims from the IC that have since been discredited.

Is THIS What Wyden Meant by “Allowing the NSA to Deliberately Search for Records of Particular Americans”?

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A month ago, I noted that after Ron Wyden and Mark Udall criticized Keith Alexander for suggesting the NSA could not deliberately search the records of specific Americans, the NSA Director withdrew the white sheet implying such a claim.

The latest report from Glenn Greenwald, describing how XKeyscore allows analysts — with no court review or other oversight — to review already collected information by indexing on metadata.

The purpose of XKeyscore is to allow analysts to search the metadataas well as the content of emails and other internet activity, such as browser history, even when there is no known email account (a “selector” in NSA parlance) associated with the individual being targeted.

Analysts can also search by name, telephone number, IP address, keywords, the language in which the internet activity was conducted or the type of browser used.

One document notes that this is because “strong selection [search by email address] itself gives us only a very limited capability” because “a large amount of time spent on the web is performing actions that are anonymous.”

The NSA documents assert that by 2008, 300 terrorists had been captured using intelligence from XKeyscore.

Analysts are warned that searching the full database for content will yield too many results to sift through. Instead they are advised to use themetadata also stored in the databases to narrow down what to review.

A slide entitled “plug-ins” in a December 2012 document describes the various fields of information that can be searched. It includes “every email address seen in a session by both username and domain”, “every phone number seen in a session (eg address book entries or signature block)” and user activity – “the webmail and chat activity to include username, buddylist, machine specific cookies etc”.

[snip]

One document, a top secret 2010 guide describing the training received by NSA analysts for general surveillance under the Fisa Amendments Act of 2008, explains that analysts can begin surveillance on anyone by clicking a few simple pull-down menus designed to provide both legal and targeting justifications. Once options on the pull-down menus are selected, their target is marked for electronic surveillance and the analyst is able to review the content of their communications:

Now, one of the graphics included with the story has a drop down menu recording how the analyst decided the target of this collection was outside the US. That is, it should exclude US persons and others located within the US. So I’m not convinced this is what Wyden and Udall referred to (unless there’s a way to get to targets’ interlocutors I can’t immediately identify).

But if analysts can access information this easily I can understand why the Senators would be so concerned.

 

DOJ Responds to Non-Intell Committee Member of Opposition Party, But Not Intell Committee Member of President’s Party

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On June 20, Rand Paul started seeking more information about how the FBI used drones. On July 9, he sent a second letter to find out about the FBI’s use of drones. After placing a hold on Jim Comey’s nomination to be FBI Director, Paul got results, with an unclassified letter admitting FBI had used drones 10 times, and a classified letter that presumably provided more detail. While Paul wasn’t satisfied with that information — he sent a follow-up asking when the FBI considers drones to impinge on reasonable expectations of privacy — he at least did get a letter. He released his hold and voted against Comey’s nomination.

Compare that to Ron Wyden, a member of the Intelligence Committee and of the President’s own party.

After meeting with Comey on July 18, Wyden sent Comey (care of DOJ’s Legislative Affairs Office) a letter on July 22 asking:

  • Whether the program that led to the hospital confrontation was the Internet metadata program and whether his concerns about it had been adequately address
  • Whether the Comey was satisfied with the way the government carried out surveillance activities during his tenure as Deputy Attorney General or whether he wished he had done more to rein them in
  • Whether the 2001 AUMF allowed the President to collect communications of Americans inside the US without a warrant
  • Whether collection of Americans’ phone record has any impact on their privacy and whether it is justified even if does not provide unique value
  • Whether he commits to giving a straight answer about how much evidence the FBI needs to track geolocation

DOJ’s Office of Legislative Affairs wrote Wyden back on July 29, basically saying, “Mr. Comey is not in a position to respond to the additional questions in your letter” in part because he “is not able to determine whether your questions implicate information that remains classified.”

Of course, several of these questions go to Comey’s fitness to be FBI Director and pertain to activities he knows better than anyone else. Others ask about his belief, something that doesn’t require classified information to share.

Wyden voted “present” for Comey’s nomination.

Mind you, Wyden didn’t wait as long as Paul before he got a far less responsive response. And he didn’t place a hold on Comey’s nomination (though given the almost unanimous support for Comey, a hold really wouldn’t have done much to delay the nomination).

Still, Wyden asked Comey questions that go far more directly to Comey’s own qualifications to be FBI Director. He asked Comey questions that he, as a member of the Intelligence Committee, should be able to get answers on.

And he got squat.

Well, at Least DOJ Promised Not to Mine Journalists’ Metadata Going Forward

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When I read this passage from DOJ’s new News Media Policy, it caused me as much concern as relief.

The Department’s policies will be revised to provide formal safeguards regarding the proper use and handling of communications records of members of the news media. Among other things, the revisions will provide that with respect to information obtained pursuant to the Department’s news media policy: (i) access to records will be limited to Department personnel who are working on the investigation and have a need to know the information; (ii) the records will be used solely in connection with the investigation and related judicial proceedings; (iii) the records will not be shared with any other organization or individual inside or outside of the government, except as part of the investigation or as required in the course of judicial proceedings; and(iv) at the conclusion of all proceedings related to or arising from the investigation, other than information disclosed in the course of judicial proceedings or as required by law, only one copy of records will be maintained in a secure, segregated repository that is not searchable.

It is nice for the subset of journalists treated as members of news media whose calls get treated under these new policies and not — as still seems possible — under the apparently more permissive guidelines in the FBI’s Domestic Investigations and Operations Guide that when their call and other business records are collected, some of that information will ultimately be segregated in a non-searchable collection. Though why not destroy it entirely, given that the information used for the investigation and court proceedings will not be segregated?

Moreover, this passage represents a revision of previous existing policy.

Which means data from members of the news media may not have been segregated in the past.

When you consider that one of the abuses that led to these new policies included the collection of 20 phone lines worth of data from the AP — far, far more than would be warranted by the investigation at hand — it raises the possibility that DOJ used to do more with the data it had grabbed from journalists than just try to find isolated sources.

Like the two to three hop analysis they conduct on the Section 215 dragnet data.

It’s with that in mind that I’ve been reading the reports that Kiwi troops were wandering around Kabul with records of McClatchy freelancer Jon Stephenson’s phone metadata.

The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone “metadata” for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a “tree” of the journalist’s associates.

New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.

The sources believed the phone monitoring was being done to try to identify Stephenson’s journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.

The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.

Last year, when this happened, Stephenson was on the Green-on-Blue beat, He published a story that a massacre in Pashtun lands had been retaliation for the killing of Taliban. He reported on another NATO massacre of civilians. He reported that a minister accused of torture and other abuses would be named Hamid Karzai’s intelligence chief. Earlier last year he had reported on the negotiations over prisoner transfers from the US to Afghan custody.

Now, the original report made a both a credibility and factual error when it said Stephenson’s metadata had been “intercepted.” That has provided the Kiwi military with a talking point on which to hang a non-denial denial — a point Jonathan Landay notes in his coverage of the claims.

Maj. Gen. Tim Keating, the acting chief of New Zealand’s military, said in a statement that no military personnel had undertaken “unlawful interception of private communications.”

“I have asked the officers responsible for our operations in Afghanistan whether they have conducted monitoring of Mr Stephenson . . . and they have assured me that they have not.”

The statement, however, did not address whether metadata, which includes the location from where a call is made, the number and location of the person who is being called and the duration of the call, was collected for Stephenson’s phones. Such data are generally considered business records of a cell phone provider and are obtained without intercepting or real-time monitoring of calls. In the United States, for example, the Foreign Intelligence Surveillance Court has ordered Verizon to deliver such records of all its customers to the National Security Agency on a daily basis.

While under contract to McClatchy, Stephenson used McClatchy cell phones and was in frequent contact with McClatchy editors and other reporters and correspondents. [my emphasis]

Indeed, higher ranking New Zealand politicians are trying to insinuate that Stephenson’s call records would only be collected if he was communicating with terrorists — even while admitting the government did have a document treating investigative journalists like terrorists.

Prime Minister John Key said it’s theoretically possible that reporters could get caught in surveillance nets when the U.S. spies on enemy combatants.

[snip]

Also Monday, New Zealand Defense Minister Jonathan Coleman acknowledged the existence of an embarrassing confidential order that lists investigative journalists alongside spies and terrorists as potential threats to New Zealand’s military. That document was leaked to Hager, who provided a copy to The Associated Press. Coleman said the order will be modified to remove references to journalists.

Finally, New Zealand officials seem to be getting close to blaming this on the US.

“The collection of metadata on behalf of the NZDF by the U.S. would not be a legitimate practice, when practiced on a New Zealand citizen,” Coleman said. “It wouldn’t be something I would support as the minister, and I’d be very concerned if that had actually been the case.”

Thus far, the coverage of the Stephenson tracking has focused on the Kiwi role in all of it. But as Landay notes, Stephenson would have been using McClatchy-provided cell phones at the time, suggesting the US got the records themselves, not by intercepting anything, but simply by asking the carrier, as they did with the AP.

Ultimately, no one is issuing a direct denial that some entity tied to ISAF — whether that be American or New Zealand forces — collected the phone records of a journalist reporting for a US-based outlet to try to identify his non-friendly sources.

So what other journalists have US allies likened to terrorists because they actually reported using both friendly and unfriendly sources?

70% of Pew’s Respondents More Attentive than Pew?

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Screen shot 2013-07-29 at 7.53.58 AMYou may have seen that a Pew poll shows, for the first time, more people think the government has gone too far in restricting civil liberties than think it has not gone far enough to protect the country. (Another poll had a similar finding just after the Boston Marathon attack.)

That said, even with concerns about civil liberties, 50% of those polled approve of the collection in the name of terrorism, while 44% disapprove.

While I’m heartened that the country has finally started expressing some concern about civil liberties, I think a detail of the Pew poll is worth noting.

A big chunk of Pew’s readers seem to have a more accurate understanding of the program than Pew’s pollsters.

Screen shot 2013-07-29 at 7.58.50 AMConsider two of its three headline findings: that 70% use data for purposes other than terrorism and that 63% believe the government is collecting more than metadata.

The first question was asked like this:

Do you think this government data collection effort is only being used to investigate terrorism, or do you think the government uses this data for purposes other than terrorism investigations?

The second question was phrased like this:

Just your impression, does this government program only collect data such as phone numbers and e-mail addresses, or is it also collecting what’s actually being said in the calls and e-mails?

The thing is, both of these questions are true: The government collects content under Section 702, including the incidentally collected content of Americans (which they can go back and search on later). And the 702 program collects information for counter-proliferation, cybersecurity, and other foreign intelligence purposes (the metadata program is reportedly limited to terrorism … if you believe all of Iran is a terrorist organization).

That said, only some of the “other purposes” Pew readers cited — such as gathering information for other crimes, and for national security — match the ones the government admits to. They also name political targeting and general control.

But Pew’s report suggests those who thing the government is collecting content are wrong.

And despite the insistence by the president and other senior officials that only “metadata,” such as phone numbers and email addresses, is being collected, 63% think the government is also gathering information about the content of communications – with 27% believing the government has listened to or read their phone calls and emails.

No. They haven’t insisted they’re collecting only metadata. They’ve insisted they’ve only used Section 215 dragnet to collect metadata.

Perhaps the headline of this study ought to be, 70% of Pew’s respondents not snookered by the metadata claim, unlike Pew?

The James Clapper Stall Declaration

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On Thursday July 25, the ACLU met the government for a hearing in their suit to stop the Section 215 dragnet (which I’ll call ACLU Injunction for this post). While there, the government handed the judge a filing for ACLU’s Section 215 FOIA, asking for more time (until September 15, or maybe longer) before respond in that case; they sent ACLU a redacted copy by letter the next day.

The filing includes a James Clapper declaration written way back on July 7 meant to apply to four or five cases asking for a two month delay on FOIA or related litgation; as far as is publicly known, however, the declaration had not yet been submitted in any of those cases.

The filing (and its redactions) are interesting for several reasons:

It suggests one ongoing case pertains to Section 215 and/or Section 702 surveillance in a way that is not publicly known.

As I said, this declaration pertains to four or five cases. Three of those are named:

  • EFF v. DOJ (12-1441): EFF’s FOIA suit to get the FISA Court opinion deeming Section 702 to have violated the Fourth Amendment (EFF FISC Opinion FOIA)
  • EFF v. DOJ (4:11-5221): EFF’s FOIA suit to get a limited number of documents pertaining to Section 215 (EFF 215 FOIA)
  • ACLU v. FBI (11-7562): ACLU’s FOIA suit to get a broader range of documents pertaining to Section 215 (ACLU 215 FOIA)

But after referencing those suits, the Clapper declaration redacts over a line describing at least one other case.

Screen shot 2013-07-28 at 10.16.40 AM

 

The letter accompanying this declaration includes a footnote explaining,

Some redactions in the declaration include information that, in isolation, may be unclassified but, in the context of the discussion in the declaration, could tend to reveal information that is still classified in other settings.

Given the other redactions — which largely refer to still unacknowledged or undisclosed aspects of the Section 215 and Section 702 surveillance, along with one probable reference to CIA — the name of these case(s) are probably one of those redactions that would be unclassified in other circumstances.

That suggests that it may be the relevance to this issue — the role of Section 215 or Section 702 — that makes the reference to the case classified.

My first guess about what case(s) might be included in that redaction is EPIC’s FOIA suit for materials pertaining to the investigation of supporters of WikiLeaks. As I have described, the government not only withheld everything under an “ongoing investigation” exemption, it also invoked “protected by statute.” But it didn’t say what statute prohibited it from releasing the materials, an unheard of FOIA practice. That suit is awaiting the judges decision on motions to dismiss.

Read more →

Ignatius Has Become a “Choice between Security and Privacy” Stenographer

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David Ignatius should be ashamed about this column. Even by his standards, it serves simply as stenography for the buzzwords top security officials have fed him, such that he repeats lines like this without any critical thinking.

Gen. Keith Alexander and other top NSA officials are considering ways they could reassure the public without damaging key programs, according to U.S. officials. They think that forcing Congress to decide between security and privacy is an unfair choice, since the country would lose either way. They’d like an agreement that protects both, but that’s a tall order. [my emphasis]

Remember: we’re talking about the Section 215 dragnet, not the (according to all players) far more valuable Section 702 collection. Even according to the government, it has only come into play in 13 terrorist cases. The only one the government can describe where it has been crucial involves indicting a man the FBI determined was not motivated by terrorism but rather tribal affiliation sending less than $10,000 to al-Shabaab three and a half years earlier.

And yet Ignatius uncritically repeats that requiring the government to use more specificity with its collections would present Congress the “unfair choice” of “deciding between security and privacy.”

So it should be no surprise that Ignatius uncritically repeats other details of the program. For example, Ignatius claims this involves only two-hop analysis, when we know it can go three hops (and therefore millions of people) deep.

When the agency identifies a suspicious number in, say, Pakistan, analysts want to see who that person called in the United States and who, in turn, might have been contacted by that second person.

Ignatius doesn’t note the descriptions — from both Edward Snowden and James Clapper — that they then use this metadata to index previously collected communications. That’s because he’s too busy repeating that we don’t “record” these collections, as if we’d have to.

Then finally there’s Ignatius’ claim that SWIFT (the record of international financial transfers) presents a viable alternative to the dragnet program. As I have reported, when the EU finally got to audit what the US had been doing with SWIFT, they discovered the real content of the queries was transmitted verbally, making it impossible to audit the use.

Thus far, no one has explained whether the queries and underlying articulable suspicion gets automatically recorded or — as happened with one of the precursors to this program — manually in hardcopy form. If it’s the latter (which I will assume until someone asserts differently) it is prone to the same kind of large scale documentation lapses that could hide a great deal of improper use of the dragnet. Which, given Ron Wyden and Mark Udall’s insistence that the problems have been more problematic than James Clapper lets on, could well be the case.

All of these are issues anyone with Ignatius’ access might want to answer.

Alternately, that access may now serve to do no more than produce “security or privacy” automatons, repeating the obviously false cant Ignatius has here.

 

Wyden and Udall: They’re Blowing Smoke about Phone and Other Bulk Record Safety

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When I wrote about the letter from Ron Wyden, Mark Udall, and 24 other Senators to James Clapper a month ago, I focused on the specter that Section 215 would be used to collect gun records (in response to which, the NRA let its political guns drop from flaccid fingers).

Given yesterday’s response from Wyden and Udall to Clapper’s response, I should have focused on this passage:

Senior officials have noted that there are rules in place governing which government personnel are allowed to review the bulk phone records data and when. Rules of this sort, if they are effectively enforced, can mitigate the privacy impact of this large-scale data collection, if they do not erase it entirely. Furthermore, over its history the intelligence community has sometimes failed to keep sensitive information secure form those who would misuse it, and even if these rules are well-intentioned they will not eliminate all opportunities for abuse.

In response to that passage, Clapper spent one paragraph talking about when the government can access this data and another describing the oversight over it, including,

Implementation of the program is regularly reviewed not only by NSA, but by outside lawyers from the Department of Justice and by my office, as well as by Inspectors General. The Executive Branch reports all compliance incidents on to the FISC.

Later, in response to a question specifically about violations, Clapper wrote,

Since the telephony metadata collection program under section 215 was initiated, there have been a number of compliance problems that have been previously identified and detailed in reports to the Court and briefings to Congress as a result of Department of Justice reviews and internal NSA oversight. However, there have been no findings of any intentional or bad-faith violations.

These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. As required, those matters, including details and appropriate internal remedial actions, are reported to the NSA’s Inspector General, the Department of Justice, the Office of the Director of National Intelligence, the FISC and in reports provided to Congress and other oversight organizations.

To which Wyden and Udall insisted,

Their [in context, probably meaning NSA’s, though they did not specify] violations of the rules for handling and accessing bulk phone information are more troubling than have been acknowledged and the American people deserve to know more details.

Now, there are a couple of different things going on here.

First, as Wyden and Udall also note, Clapper didn’t answer their question, “How long has the NSA used the PATRIOT Act authorities to engage in bulk collection of Americans’ records? Was this collection underway when the law was reauthorized in 2006?” Clapper instead answered how long NSA was using Section 215 to get telephony metadata, answering May 2006. But we know that collection was briefed before passage of the PATRIOT reauthorization, and it appears the government used a kluged hybrid order to get it from at least the time the illegal program was revealed in 2005 until the reauthorization passed.  So this earlier use may implicate earlier violations.

Nevertheless, what Clapper claims to be human error seems to be something more, the querying of records pertaining to phone numbers that aren’t clearly terrorists (or Iranians).

And given the revelation the government has gone three hops deep into this data, the reference to “highly sophisticated technology issues” suggests more sophisticated data mining than a game of half-Bacon.

Finally, one more thing. In the debate over the Amash-Conyers amendment the other day, House Intelligence Chair Mike Rogers also boasted of the controls that — according to Wyden and Udall — have proven insufficient. But in the process of boasting, he admitted other agencies have less effective oversight than the NSA.

It is that those who know it best support the program because we spend as much time on this to get it right, to make sure the oversight is right. No other program has the legislative branch, the judicial branch, and the executive branch doing the oversight of a program like this. If we had this in the other agencies, we would not have problems. [my emphasis]

When Wyden and Udall asked this question originally, they asked specifically, “Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records?” While most of their questions specified NSA, that one didn’t. The FBI, not NSA, is the primary user of Section 215, though it shares its counterterrorism (and counterespionage) data with the National Counterterrorism Center.

And even Mike Rogers appears to believe “the other agencies” have problems with this kind of data.

All of which seems to suggest there have been serious problems with the NSA’s use of the phone record dragnet. But there have been even more serious problems with bulk records on other subjects as used by other agencies.

Candidate Obama’s Tribute to “Courage and Patriotism” of Whistleblowers Disappears 2 Days after First Snowden Revelations

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Sunlight Foundation discovers the Obama Administration has removed access to his 2008 campaign promises from the White House website. It suggests one of the promises Obama may want to hide has to do with his support for whistleblowers.

While front splash page for for Change.gov has linked to the main White House website for years, until recently, you could still continue on to see the materials and agenda laid out by the administration. This was a particularly helpful resource for those looking to compare Obama’s performance in office against his vision for reform, laid out in detail on Change.gov.

According to the Internet Archive, the last time that content (beyond the splash page) was available was June 8th — last month.

Why the change?

Here’s one possibility, from the administration’s ethics agenda:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

It may be that Obama’s description of the importance of whistleblowers went from being an artifact of his campaign to a political liability.

To be fair, Obama did extend whistleblower protection beyond that of the law last year — though he did it largely in secret.

Of course, that came at the same time as Obama rolled out an Insider Threat Detection system that seems designed to discourage anyone from speaking out … about anything.

And then there’s the issue of all the whistleblower prosecutions.

But if Obama did hide his campaign promises specifically to hide this tribute to the “courage and patriotism” of whistleblowers, then I find the timing particularly interesting. June 8 was just two days after the first Edward Snowden release (at a time, moreover, when the Guardian had reported only issues that went to lies James Clapper and Keith Alexander had told, making Snowden’s claim to be unable to go through regular channels quite credible).

Mind you, Obama could be hiding other promises. I still think promises about mortgages and homes are his biggest failure.

Steny Hoyer Thinks All Americans May Be Pre-Investigation Terrorist Communicators

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Screen shot 2013-07-25 at 8.05.39 AM

Like Glenn Greenwald, I’m appalled by the crazy language Steny Hoyer circulated yesterday to oppose the Amash-Conyers amendment. Here’s the language:

2) Amash/Conyers/Mulvaney/Polis/Massie Amendment – Bars the NSA and other agencies from using Section 215 of the Patriot Act (as codified by Section 501 of FISA) to collect records, including telephone call records, that pertain to persons who may be in communication with terrorist groups but are not already subject to an investigation under Section 215.

The language is crazy on the macro level, as Glenn notes, but I’m also fascinated by the structure of it. First, the language reverses the structure of the actual “relevant to” language that has been blown up beyond all meaning pretending it is instead specific: “pertain to persons who may be in communication with terrorist groups.” But this language is only true if you assume every single American is a pre-investigative terrorist communicator (and to be fair, with the permission to go three hops deep into the dragnet database, we probably all are “in communication with terrorist groups”). Steny then qualifies this group (all of us, really, now that we’ve all been defined to be terrorist communicators through the genius of the half-Bacon) as “not already subject to an investigation.”

But you will be, America. You will be subject to an investigation, according to Steny Hoyer.

Then there are details of the language that suggest why the Administration panicked so badly. This language would have defunded all bulk collection under Section 215, including phone records, but also including acetone and hydrogen peroxide and probably now pressure cookers. Presumably, that’s what Keith Alexander and James Clapper explained to Congress in their TS/SCI briefings the other day (not having learned they’re better off admitting their dragnets rather than having them exposed).

Which is why I find it interesting that Steny noted this would apply to NSA “and other agencies,” which includes, but is apparently not limited to, FBI.  And these other agencies are using 215 to collect, “records, including telephone call records.” And probably including health records and geolocation and gun records and the like.

And Steny wants to make sure the FBI and other agencies can get this information about us, because after all, once you go three hops deep, every American just becomes a terrorist communicator not yet under investigation.