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The Truth Missing from Alexander Joel’s “Truth” about EO 12333

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Over at Salon, I’ve got a piece responding to Office of Director of National Intelligence Civil Liberties Officer Alexander Joel’s column purporting to describe the “truth” about EO 12333.

Click through to see this part of my argument:

  • Joel resorts to the tired old “target” jargon
  • Joel points to PPD 28, which rather than supporting his point, actually shows how broadly the NSA uses bulk collection and therefore how meaningless that “target” jargon is
  • Joel doesn’t address one of John Napier Tye’s points — that current technology allows the NSA to collect US person data overseas
  • We know they’re doing that in the SPCMA — the Internet dragnet authority conducted on Internet data collected overseas

But it’s Joel’s claim about oversight I find most problematic.

Oversight is extensive and multi-layered. Executive branch oversight is provided internally at the NSA and by both the Department of Defense and the Office of the DNI by agency inspectors general, general counsels, compliance officers and privacy officers (including my office and the NSA’s new Civil Liberties and Privacy Office). The Department of Justice also provides oversight, as do the Privacy and Civil Liberties Oversight Board and the president’s Intelligence Oversight Board. In addition, Congress has the power to oversee, authorize and fund these activities.

As I note in my piece, really what we have is single branch oversight. And that’s not going to prevent abusive spying.

Joel’s claim,”Oversight [of EO 12333 collection] is extensive and multi-layered,” rings hollow. He lists 4 oversight positions at 3 Executive branch agencies, then points to 3 more Executive branch agencies he claims have a role. Having the Executive oversee the Executive spying on Americans poses precisely the kind of threat to our democracy Tye raised.

Then Joel claims, “Congress has the power to oversee, authorize and fund these activities.” Of course, that’s different from Congress actually using that power. Moreover, the record suggests Congress may not currently have the power to do anything but defund such spying, assuming they even know about it. Senate Intelligence Committee Chair Dianne Feinstein admitted last August that her committee doesn’t receive adequate information on EO 12333 collection.  Joel’s boss, James Clapper, refused to answer a question from Senator Amy Klobuchar on EO 12333 violations in a hearing in October. And when Senator Mark Udall suggested a “vast trove” of Americans’ communications collected overseas should be provided the protections laid out in FISA, Assistant Attorney General John Carlin explained the National Security Division — the part of DOJ he oversees, which has a central role in oversight under FISA — would not have a role in that case because the collection occurred under EO 12333.

In his column, Joel makes no mention of the third branch of government: the Courts. That’s because, as ACLU’s Patrick Toomey laid out last week, the government doesn’t give defendants any notice if their prosecutions arise from data collected under EO 12333. Criminal prosecutions are where some of the most important oversight on Executive branch spying takes place. By exempting EO 12333 from any such notice, then, the government is bypassing another critical check on potentially abusive spying.

Back in 1978, our government decided that both Congress and the courts should have a role when the Executive branch spied on Americans. That was the entire premise behind the FISA law.  But by moving more and more of its spying overseas, the government can and — apparently, at least to a limited extent — is bypassing the oversight accorded through three branches of government.

FISA was written in 1978, before it became so easy to spy on Americans’ domestic communications overseas. FISA Amendments Act partly addressed the new technological reality — by giving the Executive permission to spy on foreigners domestically. But it provided inadequate protections — Sections 703-5 — in return. Those measures, requiring a Court order for targeting Americans who are themselves overseas (but not for targeting Americans’ data that transits overseas), simply don’t do enough to prevent the government from using this new technological reality from spying on Americans.

Alexander Joel: Dragnet with a Human Face

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For some reason, James Clapper’s office decided it would be a good idea to tell the rest of the world that it has a Civil Liberties Protection Officer, Alexander Joel. Today, he introduces himself in a piece in McClatchy.

Before you read it, consider that, back in 2006 when he was appointed, he said he was cool with Dick Cheney’s illegal wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

As for his essay, most of it is the same blathering boilerplate about Section 215 not collecting content and Section 702 not permitting “targeting” of US persons (without acknowledging that it does permit collecting of their content).

But there are two amusing details. First, in one paragraph he goes from actually mentioning the Constitution (which is welcome and novel!) to suggesting that a national security contractor like Edward Snowden would have been protected as a whistleblower.

Some people question whether people who work for the government can be trusted. In my experience, intelligence professionals � [sic] and those overseeing them – are profoundly committed to the oath they take to support and defend the Constitution. People inside government have questions and concerns just like everyone else. It’s my job to raise civil liberties and privacy issues about intelligence activities, and I do. If intelligence personnel have legal or civil liberties concerns, they can raise them in secure ways, including by contacting my office, offices of inspector general, or the congressional oversight committees. Under law, they are protected from reprisal if they do.

More interesting still, is Joel’s discussion of the two oversight Boards he claims have an active role in these programs.

Oversight boards are also involved. The President’s Intelligence Oversight Board reviews reports of potential violations. The Privacy and Civil Liberties Oversight Board, an independent federal agency, is currently conducting an in-depth review of these two programs, and has full access to classified information about them and to the personnel involved. My office works with both boards to ensure that they are receiving the information they need to perform their oversight functions.

Back in 2010 and 2011 — a time when Joel was in the office — ODNI at first stalled and then provided really confused information about whether there even was a functional Intelligence Oversight Board. And with the ascension of Chuck Hagel, who was a big part of the board, to be Defense Secretary, it is dysfunctional (unless Obama has snuck another person onto without telling anyone).

And PCLOB only recently became functional for the first time in Obama’s presidency, partly due to his delays, partly due to the Senate’s. And their recent public hearing on the NSA programs was underwhelming.

Joel has just bragged about how closely he worked with these Boards. He knows they’ve been of spotty functionality.

But this is the dragnet with a human face. The truth doesn’t matter so much as making people feel better.

Update, 8/15: On the subject of IOB and its parent board, the President’s Intelligence Advisory Board, Josh Gerstein has this:

The President’s Intelligence Advisory Board stood 14 members strong through 2012, but the White House website was recently updated to show the panel’s roster shrinking to just four people.

In the past four years, the high-powered group has waded into the implications of WikiLeaks for intelligence sharing, and urged retooling of America’s spy agencies as the United States withdraws from big wars abroad.

[snip]

Chuck Hagel was nominated in January as defense secretary and sworn in the following month. Venture capitalist and former lobbyist Tom Wheeler joined the board in 2011, but was tapped by Obama in May 2013 to head the Federal Communications Commission.

And Hagel’s co-chairman and fellow former senator, David Boren, said he asked to leave the panel early this year “because of the demands of my work as president of the University of Oklahoma. My request to the president was made shortly after the first of the year,” Boren said in a statement responding to a query from POLITICO.

Also exiting the board in recent months, according to the White House website: former Securities and Exchange Commission member Roel Campos, international lawyer and philanthropist Rita Hauser, stealth technology pioneer and former Undersecretary of Defense Paul Kaminski, Stimson Center CEO Ellen Laipson, and retired Air Force Gen. Lester Lyles. [my emphasis]

So yesterday, Alexander Joel pointed to IOB as one of the key oversight mechanisms over the dragnet. Today, we learn that every single member of the Board has been appointed away or asked to resign.

Update: Gerstein says on Twitter he thinks IOB is fully operational.

Actually, I think IOB more or less fully staffed & chaired by Meltzer. I think WH understands they need that up for lgl reasons

The “Oversight” over NCTC’s Not-Terrorist-Terrorist Database

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Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

That should trouble you, because he’s the cornerstone of oversight over the National Counterterrorism Center’s expanded ability to obtain and do pattern analysis on US person data.

The Guidelines describe such oversight to include the following:

  • Periodic spot checks overseen by CLPO to make sure database use complies with Terms and Conditions
  • Periodic reviews to determine whether ongoing use of US person data “remains appropriate”
  • Reporting (the Guidelines don’t say by whom) of any “significant failure” to comply with guidelines; such reports go to the Director of NCTC, the ODNI General Counsel, the CLPO, DOJ (it doesn’t say whom at DOJ), and the IC Inspector General; note, the Guidelines don’t require reporting to the Intelligence Oversight Board, which should get notice of significant failures
  • Annual reports from the Director of NCTC on an (admittedly worthwhile) range of metrics on performance to the Guidelines; this report goes to the CLPO, ODNI General Counsel, the IC IG, and–if she requests it–the Assistant Attorney General for National Security

There are a few reasons to be skeptical of this. First, rather than replicate the audits recently mandated under the PATRIOT Act–in which the DOJ Inspector General develops the metrics, these Guidelines have NCTC develop the metrics themselves. And they’re designed to go to the CLPO, who officially reports to the NCTC head, rather than an IG with some independence.

That is, to a large extent, this oversight consists of NCTC reporting to itself.

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