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Project Minaret 2.0: Now, with 58% More Illegal Targeting!

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For weeks, I have been trying to figure out why the NSA, in a training program it created in August 2009, likened one of its “present abuses” to Project Minaret. What “unauthorized targeting of suspected terrorists in the US” had they been doing, I wondered, that was like “watch-listing U.S. people for evidence of foreign influence.”

Until, in a fit of only marginally related geekdom, I re-read the following passage in Keith Alexander’s declaration accompanying the End-to-End review submitted to the FISA Court on August 19, 2009 (that is, around the same time as the training program).

Between 24 May 2006 and 2 February 2009, NSA Homeland Mission Coordinators (HMCs) or their predecessors concluded that approximately 3,000 domestic telephone identifiers reported to Intelligence Community agencies satisfied the RAS standard and could be used as seed identifiers. However, at the time these domestic telephone identifiers were designated as RAS-approved, NSA’s OGC had not reviewed and approved their use as “seeds” as required by the Court’s Orders. NSA remedied this compliance incident by re-designating all such telephone identifiers as non RAS-approved for use as seed identifiers in early February 2009. NSA verified that although some of the 3,000 domestic identifiers generated alerts as a result of the Telephony Activity Detection Process discussed above, none of those alerts resulted in reports to Intelligence Community agencies. 7

7 The alerts generated by the Telephony Activity Detection Process did not then and does not now, feed the NSA counterterrorism target knowledge database described in Part I.A.3 below. [my emphasis]

As I’ll explain below, this passage means 3,000 US persons were watch-listed without the NSA confirming that they hadn’t been watch-listed because of their speech, religion, or political activity.

Here’s the explanation.

Read more →

Yes, Margaret, the NSA Dragnet Does Involve Infiltration

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Margaret Talbot has a piece at the New Yorker comparing COINTELPRO with Snowden’s leaks (and implicitly, the theft of data that lies behind both disclosures). Here’s the key paragraph of the comparison:

In most respects, the National Security Agency’s collection of domestic phone records which Edward Snowden revealed is nowhere near as disturbing as cointelpro’s activities. It is neither ideologically motivated (the N.S.A.’s actions were initially ramped up in response to a real attack; Hoover’s were intent on destroying perceived enemies) nor thuggish (it entails surveillance but not infiltration or harassment or blackmail or smear campaigns). Yet in one regard—its technological prowess—it is worse. As the U.S. District Court Judge Richard Leon wrote last month, in an opinion that strongly suggests that the metadata collection could be found unconstitutional, “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of a person’s life.” Leon noted that the government did not cite any instances in which the data collection proved necessary in preventing an imminent attack, and concluded that, when weighed against the “almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States,” the N.S.A.’s rationale was simply too weak. [my emphasis]

There’s a lot I might quibble with in this paragraph. The government considered the anti-war effort part of Communism’s “attack” on the “free world,” whether or not that was true, in the same way it sometimes considers many critics of US policy in the Middle East — if they are themselves Muslim — to be inspired by al Qaeda, not opposition to crappy US policy. And the NSA has itself analogized its targeting of certain people in the US as terrorists with Project Minaret, the SIGINT targeting of largely anti-war activists; if the NSA makes this comparison, who are we to question it? Further, there’s evidence (albeit still very sketchy) that NSA targeted people associated with the Iraq War, not just terrorism.

But I’m particularly concerned by Talbot’s claim that none of this dragnet entails infiltration. The government itself told the FISA Court that it uses the phone dragnet to find potential informants — it is, according to the representations the government has made to get the FISC to approve the program, one of the primary purposes of the dragnet.

From the very start of the FISC-approved program, the government maintained the dragnet “may help to discover individuals willing to become FBI assets,” and given that the government repeated that claim 3 years later, it does seem to have been used to find informants.

When you unpack the possibilities of using metadata including the phone records of all Americans to find people who might narc on their community, it becomes very scary indeed. Because the dragnet would allow the government to discover details about people — their 3 degrees of separation from people suspected of terrorist ties, sure, but also extramarital affairs or financial problems — they can use to harass or blackmail potential informants with to convince them to inform, something they’ve suggested they do with their SIGINT.

One of the only reasons why we don’t know more about this is because we’re seeing just the NSA side of these programs. The government is thoroughly redacting any details about what FBI or CIA do with the data that gets churned out of the dragnet (all while boasting of its transparency), so we can’t yet explain what happens between the time the data gets crunched and some kid gets caught in a sting or some American loses her right to fly.

But we do know what the end product of infiltrating the Muslim community looks like, both in the way FBI informants push young men until they press a button they can be arrested for, the descriptions of the extensive spying FBI’s (and NYPD’s) informants conduct, largely targeted at mosques, and in the effect it has had on the discourse that takes place within those mosques.

African-Americans in the heart of Michigan’s auto industry built the mosque I attended as a child.

[snip]

Our African-American imam took turns with others to deliver the Friday khutba (sermon). We witnessed oral traditions accented from around the globe and across the road: the khateebs(deliverers of sermons) were lyrical and inspired, awkward and soft-spoken; the congregants received the khutba differently too, from active talk back to a silent receptive posture. While varied in style, the khutba routinely offered global context and critical content. The khateebs would remind us of the poverty in Detroit’s neighborhoods and the death in Baghdad’s streets. They would preach about the importance of the Muslim ummah (global community) and the duty to speak out against injustices small and large. The khateeb would regularly call for civic engagement as he also reached for religious inspiration.

These days, when I stop in a mosque, I am struck by the new normal: no politics, no world, no nimble movement between religious ethics and social context. Today’s khutbas present the congregation religious teachings in a void. Khateebs speak of the importance of honesty, forgiveness, humility and remembrance. They ignore Iraq and Afghanistan, Guantánamo and drones, informants and surveillance. They tell stories about Muhammad, Abraham, Moses, Mary and Jesus but leave out the universal themes of poverty, inequality and injustice.

From mosques to Muslim Student Association offices, American Muslim community spaces have been emptied of their politics, leeched of their dynamism as centers for religious and political debate. This new normal is the result of ten years of post-9/11 scrutiny combined with our government’s more recent embrace of “counter-radicalization” and “countering violent extremism” programs, which subject Muslim communities’ religious and political practices to aggressive surveillance, regulation and criminalization.

It’s easy, I think, for elite non-Muslim commentators to consider the infiltration of a political tradition they or their associates had personal involvement in, the anti-war movement, to be worse than the infiltration of mosques. I’m not sure they’re in a position to judge. But at least from what I’ve seen and heard, the infiltration of America’s Muslim communities seems designed to “enhance the paranoia endemic in these circles and will further serve to get the point across there is an FBI agent behind every mailbox,” just as the FBI’s efforts targeting the anti-war and African-American communities aimed to do.

The NSA has told us the dragnet involves infiltration. That the NSA hands off the data it collects so the FBI can carry out the infiltration should not confuse us that it does, in fact, play a role in infiltrating communities and sowing paranoia.

Did the Hospital Confrontation Shut Down an Illegal Dragnet against Iraq War Critics?

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Several days ago I wrote,

Both Goldsmith’s memo (see PDF 14) and the Draft NSA IG Report (PDF 10) make it clear that, in addition to temporarily shutting down the Internet dragnet, the March 19, 2004 modifications to the program narrowed the program’s focus to exclude the Iraqi Intelligence figures who had previously been included, suggesting that Goldsmith only felt he could approve the program for terrorists.

Wait, what?

I’ve known — and written — about this detail in the past. But I hadn’t really put together what it means.

Post-hospital confrontation changes include the exclusion of Iraqi-related targets

Here’s what the two passages say. Goldsmith’s (still heavily redacted) memo reveals that, along with other modifications George Bush made on March 19, 2004 in response to the DOJ resignation threats (notably, temporarily shutting down the Internet dragnet) he also “clarified” the scope of the program.

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [redacted]. He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group [redacted]

The NSA IG Report explains that “clarification” halted using the Presidential Surveillance Program authority against the Iraqi Intelligence Service.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion of lraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004. [my emphasis]

There may be a perfectly innocent explanation for this.

At precisely that time, Goldsmith was trying to rein in the government’s rendition program to prevent the rendition of Iraqis protected under international law governing occupation. And, at what appears to have been the same time, DOD was for the first time making a distinction between between Iraqis detained and interrogated as former regime officials and Iraqis detained and interrogated as leaders of the insurgency. Clearly, up until that point, Bush had been using the rules invented to hunt terrorists in his Iraq War, creating all sorts of legal problems. So it would be unsurprising if Goldsmith used the resignation threats to force Bush to stop targeting Iraqi officials as terrorists when they were really legal opponents in a war.

The Iraqi-related illegal wiretapping targets must include US-based collection

Except that doesn’t make sense.

That’s because, whatever violations of international law Bush was committing in Iraq, illegal spying on Iraqis was almost certainly not one of them. Nothing prevented the government from spying on Iraqis, and very little spying on Iraqis in Iraq would involve the kind of US collection that implicated his illegal wiretap program.

Which is why the IG Report’s description of an Iraqi intelligence “threat to U.S. interests in the United States” gives me pause.

The illegal program, after all, was focused on US metadata and content collection to find threats (what it called “terrorists”) in the United States. Both the method and location of collection only make sense if you’re hunting communications with at least one, if not both, sides in the US.

There was no real known threat posed by Iraqi governmental interests in the US, in part because the US military chased the Iraqi government underground so quickly. And yet, for it to be something tied into the resignation threats, some significant spying must have been going on.

The obvious guess — and at this point it is just a guess — would be they used the illegal wiretap program to hunt down people Cheney’s minions claimed helped Iraq’s cause here in the US.

You know? Iraqi intelligence assets? Like anti-war activists?

Some data points that might support Bush’s use of his illegal program against anti-war activists

Again, at this point, this is just a guess, one that would be thoroughly unsurprising but is not supported by hard facts.

But it’s worth remembering that Bush did roll out a domestic spying program to track anti-war activities, CIFA, the database for which was destroyed just weeks before NYT initially exposed Bush’s illegal program. We know there were ties between that program and heavy FBI investigations in the US. Then there’s the Antiwar investigation, started just weeks after the hospital confrontation, that used a counterterrorism purpose (a watchlist Antiwar posted) as the predicate to call for further investigation of Antiwar’s online publications, conducted in multiple cities. The Bush Administration was clearly conducting aggressive spying on anti-war activists, so it would be unsurprising to learn it used the threat of Iraqi involvement in the US to conduct illegal electronic surveillance.

Then there’s the suggestion in this NSA training program (from which the two slides above come — see this post for background) that NSA had a “present example” (in 2009) of an abuse akin to Project Minaret, in which a watchlist of citizens –largely critics of the Vietnam War — were surveilled in the name of tracking any foreign influence on them. Here’s Matthew Aid’s description of recent disclosures about that program.

As the Vietnam War escalated during Lyndon B. Johnson’s presidency, domestic criticism and protest movements abounded. Protesters surrounded the Pentagon in the fall of 1967 and two years later organized demonstrations and the Moratorium to End the War in Vietnam. The scale of the dissent angered Johnson as well as his successor, Richard Nixon. As fervent anti-communists, they wondered whether domestic protests were linked to hostile foreign powers, and they wanted answers from the intelligence community. The CIA responded with Operation Chaos, while the NSA worked with other intelligence agencies to compile watch lists of prominent anti-war critics in order to monitor their overseas communications. By 1969, this program became formally known as “Minaret.”

While the NSA slide describes the present example as “unauthorized targeting of suspected terrorists in the U.S.,” not targeting of anti-war activists, we know the collection shut down in March 2004 must have involved the targeting of people in the US based on a claim that some tie to Iraqi interests made them terrorists. Moreover, such targeting would be an exact parallel with Minaret (and while I haven’t discussed it yet, I am cognizant of Bernie Sanders’ recent questions about the targeting of members of Congress, as happened under Minaret and, for reasons explained in my earlier post, as the training program may allude to).

Again, I want to emphasize: this is just a wildarsed guess. though one consistent with what we know about Bush’s illegal program and his surveillance of anti-war activists generally.

Whatever it was, it was part of the package that almost led a bunch of DOJ officials to quit.

In 2009, NSA Said It Had a “Present Example” of Abuse Similar to Project Minaret

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While we’re discussing new hints that the NSA actually has targeted Americans in creepy old-style spying, I want to look closely at a training program that ODNI describes as dating to August 2009. The I Con description reads, in part,

August 2009 NSA Cryptological School Course on Legal, Compliance, and Minimization Procedures. These course materials, designed for NSA personnel provided access to bulk telephony and electronic communications metadata acquired pursuant to Section 501 of FISA and Section 402 of FISA respectively

There should be some tie to the PATRIOT-authorized phone and Internet dragnets, otherwise this document wouldn’t be responsive to the ACLU and EFF FOIAs it was released in response to. But I actually suspect they may have grabbed the wrong August 2009 training program from their “heap of trouble in 2009” file, because there’s not a hint of PATRIOT authorities in the course. In fact, I think it’s possible that the training instead responded to the violations reported on by Risen and Lichtblau in April 2009,

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

[snip]

But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

[snip]

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The training covers things like the FISA Amendments Act statutes limiting wiretapping of Americans overseas (sections 703, 704, and 705). It seems to talk about necessary limits on upstream collection. It discusses how to narrow search terms on already collected data to avoid collecting innocent US person data. It also appears to have several heavily redacted sections that talk about wiretapping protected persons like members of Congress.

All that said, I’m particularly interested in the training for another reason (though the violations reported by Risen and Lichtblau may provide helpful background). In several sections, the training seems almost plaintive in its efforts to convince analysts to follow the rules, as on page 83 where it explains the best way to protect the NSA is to play by the rules.

The best way to protect ourselves and our SIGINT is to play by the rules.

No matter how inconvenient the rules may seem, if we fail to adhere to them, the next set of rules will be far stricter. (82)

More interesting still are two series of slides that bookend what we see of the presentation save a last mostly-redacted section (see pages 6-8 and 114-116, excerpted above; click to enlarge). After introducing Katz v. US, a Supreme Court case that recognized the expectation of privacy in phone conversations, the presentation reviewed 3 past wiretapping scandals.

Operation Shamrock: 1945-1975

  • NSA received copies of international telegrams to, from, and transiting the U.S.

Narcotics Collection: 1970-1973

  • Obtained Communications that Law Enforcement could not acquire under Title III

Project Minaret: 1967-1973 (The Watch List)

  • Names of U.S. persons used systematically as basis for selecting messages

Then almost a hundred pages later, the presentation includes 3 slides that match those earlier abuses with what it calls present examples (in the image above I’ve matched the original slide to the follow-up). The first — the one matching Operation Shamrock — is almost entirely redacted, showing only that it involves “targeting of …” (presumably referring to email or phone calls).

Telegrams

The second — the one matching illegal Narcotics wiretaps — describes a “Restaurant in Texas to identify narcotics smugglers.”

TX Restaurant

The third — the one matching Project Minaret — admits to “unauthorized targeting of suspected terrorists in U.S.”

Unauthorized suspected terrorists

 

These comparisons, it seems, aimed to match historic abuses to “present” (or recent) practices, warning that if NSA analysts didn’t clean up their act something like a Church Committee and more stringent rules would be imposed.

I have no idea what NSA meant when it called these three things “Present Examples” (though I’m sure the lawyers for the restaurant in Texas would be interested in this news). It’s quite possible the first and third refer to practices under Bush’s illegal wiretap program, which we know involved domestic wiretapping of the phone and email of people alleged to be terrorist suspects. In other words, these abuses may refer to pre-2007 activities rather than the violations Risen and Lichtblau reported in early 2009.

That said, NSA’s OGC seems to have believed — or at least fear-mongered — that the “present” abuses were similar in kind to the famous abuses from the 1970s.