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View Diary: Was criticism of Obama's directive on NSA review group justified? (272 comments)

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  •  ICD-111 permits review by several entities (6+ / 0-)

    Some of the comments here got me to wonder (the comment about the 'Group' vs 'Board' name, for one) about a couple of things, such as:  If ICD-111 governs review boards, why was it not referenced in either the Press Release of Clapper's memo?  Why the naming anomaly?  And, if ICD-111 is not the governing document for this particular review, what rules do govern it?  

    I don't have answers for those questions yet, but I did find that Deep Harm's link to ICD-111 shows that several groups can start a review.

    http://www.fas.org/... [about 5-6 pages]

    B. PURPOSE: This Directive implements Section 102A(f)(7) of the National Security Act, as amended. This provision states in pertinent part that "the Director of National Intelligence shall, if the Director determines it is necessary, or may, if requested by a Congressional intelligence committee, conduct an accountability review of an element of the Intelligence Community (IC) or the personnel of such element." This Directive establishes policy and procedures governing the conduct of such reviews.

    [D]2. Except in extraordinary circumstances as determined by the DNI, the DNI will not conduct or will defer conducting accountability reviews pending the completion of any review on the same
    or related issues being conducted by law enforcement entities, inspectors general, internal agency or department accountability reviews, the President's Intelligence Advisory Board, civil liberties and privacy offices, the Council of the Inspectors General on Integrity and Efficiency, or other duly authorized investigative bodies.

    And ICD-111 has provisions in place for reviewers that don't have security clearances:
    F. SCOPE OF ACCESS TO RECORDS: In discharging their respective responsibilities, an Advisory Board and a Full Review Board shall have direct access except as prohibited by law (to include judicial orders) to all records, reports, audits, reviews, documents, drafts, recommendations, and all other materials that may relate to the matter being reviewed, regardless of compartmentation or classification, and shall be appropriately cleared and indoctrinated for such access. Additionally, all accountability reviews shall adhere to proper protection of Sensitive Compartmented Information (SCI) and classified intelligence information in accordance with applicable IC Directives.
    So, rhetorical questions here -- Will this Review Group follow ICD-111, or other rules (and if so, what rules?).  From the list of entities that can start Reviews, are there any that could start one due to citizen or Congressperson concerns (ie, not from within Executive Branch)?
    •  Don't forget... (3+ / 0-)
      Recommended by:
      davidincleveland, lotlizard, Joieau

      Bush signed Executive Order 13470 - U.S. Intelligence Activities which expanded the role of the DNI.  Maybe the authority is in there?

      •  Exec Order 13470 on NSA functions (5+ / 0-)

        Thanks, dharmafarmer, for the link to the Exec Order.  Is this the one mentioned in the 8/12 Press release and Clapper memo?

        Your link is to amendments to the Order -- final version is next door at https://www.fas.org/...

        The early parts of the memo spell out the functions of the DNI -- Clapper has enormous power, over a number of departments.

        I hope this isn't too far OT, but the Exec Order has a section on the prescribed functions of NSA.  Not one word about 'domestic' spying in there.

        https://www.fas.org/...

        (c) THE NATIONAL SECURITY AGENCY. The Director of the National Security Agency shall:

        (1) Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions;

        (2) Establish and operate an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities
        except pursuant to a delegation by the Secretary of Defense, after coordination with the Director;

        (3) Control signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders;

        (4) Conduct administrative and technical support activities within and outside the United States as necessary for cover arrangements;

        (5) Provide signals intelligence support for national and departmental requirements and for the conduct of military operations;

        (6) Act as the National Manager for National Security Systems as established in law and policy, and in this capacity be responsible to the Secretary of Defense and to the Director;

        (7) Prescribe, consistent with section 102A(g) of the Act, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling, and distribution of signals intelligence and communications security material within and among the elements under control of the
        Director of the National Security Agency, and exercise the necessary supervisory control to ensure compliance with the regulations; and

        (8) Conduct foreign cryptologic liaison relationships in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order.

        The NSA Director, Alexander is responsible to Clapper for all these items, which appears to make Clapper the 'buck stops here' guy for NSA malfeasance.  Note that the only NSA activities to take place on American soil is item 4 -- "administrative  and technical support activities within and outside the United States as necessary for cover arrangements".

        It sure looks to me like Clapper didn't fulfill his duties of keeping NSA operating within the limits of its prescribed functions.

        •  Yes, (2+ / 0-)
          Recommended by:
          Joieau, CroneWit

          Sorry about that, CroneWit - I had been reviewing the amendments and posted the wrong link.  Simultaneous with the release of the President's white paper on NSA, there was released a paper on the function of NSA.  Under authorities: "NSA's collection authorities stem from two key sources: Executive Order 12333 and the Foreign Intelligence Surveillance Act of 1978 (FISA)."
          http://www.nsa.gov/...

          EO 12333, a Reagan era EO, was amended by Bush in EO 13470.  As far as I can tell, all of the domestic stuff is authorized by FISA.

          •  I'm glad your posted link to Exec Order (2+ / 0-)
            Recommended by:
            dharmafarmer, Joieau

            and the final product was linked on the page you provided.  It's an easy mistake to make, picking something from the wrong tab.

            I remember that two NSA-related documents were provided 'for the public' Friday 8/9 in relations to the Press Conference.  It took me a couple of days to find downloadable versions of these, so I haven't read them yet.  

            I'm just realizing that I need to make sure I've got the dates/docs straight.  Please bear with me as a I 'think out loud'.  (not questioning you, but the docs the govt chose.)

            --- The 7-page pdf put out Fri 8/9 along with press conference is for public consumption and says --

            Executive Order 12333 is the foundational authority by which NSA collects, retains, analyzes, and disseminates foreign signals intelligence information.
            --- Yet you say that --
            EO 12333, a Reagan era EO, was amended by Bush in EO 13470.

            ---- The heading of EO 12333 at fas.org does not state the date of EO 12333 (nor does the body) so its oringation date is unknown as yet..  But the heading does say --

            (As amended by Executive Orders 13284 (2003), 13355 (2004) and 13470 (2008))
            --- So, the 'foundational authority' for NSA (which was cited in the 8/9/13 NSA public release doc) is EO 12333 produced by Reagan (1980-1988?).  However, EO 12333 was amended in 2003, 2004, and 2008 so that the latest amended version is Bush's 2008 EO 13470.

            Query:  If the 5-year-old Bush 2008 13470 is the current version of the NSA 'foundational authority', why did NSA give the public a reference to the 25-30 year old Reagan EO 13470?

            Query:  How does the current Bush EO 13470 compare to the Reagan 12333?  

            dharmafarmer, could you do me a huge favor and locate a link to the Bush 2008 version of this?

            Thanks again for your work!

            •  National Archives (2+ / 0-)
              Recommended by:
              CroneWit, Joieau

              is a good place to look for old EOs.
              Reagan's 1981 EO 12333.

              Good question about why the administration cited Reagan's EO rather than Bush's updated one, CroneWit.  Bush's EO primarily enlarged the authority of the DNI, so my guess is that the admin and the NSA were trying not to draw attention to that fact.

            •  Confusion resolved - we have 2008 EO 13470 (2+ / 0-)
              Recommended by:
              dharmafarmer, Joieau

              Okay, I think I have it now.  Sorry for my confusion among documents.  Here's how I got confused --

              I looked at the 2008 Amendment page (EO 13470), saw that it was not the full document (amendments only), and found a full version, which I linked to.  I thought this full version was EO 13470.  What it really is (I understand now) is (1) Regan's EO 12333 (2) as amended by Bush's 2008 EO 13470.  So the pdf I found and linked to is the current version.  (I checked the Amendment language against the current version of EO 12333, and the 2008 Amendment language is incorporated.)

              The fas.org page for Amendment EO 13470 links to the current version of EO 12333 here --

              https://www.fas.org/...

              FAS Note: The resulting text of Executive Order 12333 as amended by Executive Order 13470 is available here (pdf).

              [the word 'here' links to https://www.fas.org/... ]

              I hope I've clarified the confusion I created.  So sorry.

              But all this checking back and forth between versions made me notice this from the current version of EO 12333 --

              https://www.fas.org/...

              PART 1 Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts

              1.1 Goals. The United States intelligence effort shall provide the President, the National Security Council, and the Homeland Security Council with the necessary information on which to base decisions concerning the development and conduct of foreign, defense, and economic policies, and the protection of United States national interests from foreign security threats. All departments and agencies shall cooperate fully to fulfill this goal.

              [...]

              (b) The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.

              •  That's very helpful to me. (2+ / 0-)
                Recommended by:
                Joieau, CroneWit

                Thank you very much.  I noticed they cited the 1978 FISA law, too, so this must be typical citation protocol.

                I think the words "under this order" in that passage you've cited are pretty critical.  He could have said "in all instances" or "under all laws and this order" or some such.  It's an important distinction when there is other operational law that governs collection of intelligence, especially foreign. And there is.  I'll be publishing a diary about this in the next couple days.  I hope it will find you.  :-)

                •  MUCH parsing to be done on EO 12333! (0+ / 0-)

                  And the next document to find is the FISA Act of 1978, as amended.

                  Say, if I don't show up in your diary, would you kosmail me?  I'd hate to miss it.

                  The comment threads on all related diaries are getting so LOOOONG and I just feel obligated to read and participate.  And then the last day or so there are meta-diaries in response to the New Rules -- which end up being All About the Trolls.  I've spent several hours tonight it two such threads.

                  •  Too late to rec your comment, CroneWit, (1+ / 0-)
                    Recommended by:
                    CroneWit

                    so you'll know I've seen it but it seems you look for responses and, hopefully, you'll see this one.  I "finished" my diary last night.  I put finished in scare quotes because I am the Queen of Revision and it's hard for me to ever consider anything I've ever written "done."  At some point, though, you've just gotta let 'er rip, right?  I'm undecided about whether that will be this evening or Monday evening.  I will Kosmail you, yes.  I appreciate your interest in "connecting the dots" and there's some of that in my diary.

                    •  Great! More on EO 12333 at Guardian (1+ / 0-)
                      Recommended by:
                      dharmafarmer

                      here--

                      Damn!  Something's wrong with my browser.  Its clipboard will not let go of a piece of text and keeps inserting it when I try to cut-paste a link.

                      Guardian headline --

                      NSA revelations of privacy breaches 'the tip of the iceberg' – Senate duo
                      Leading critics of NSA Ron Wyden and Mark Udall say 'public deserves to know more about violations of secret court orders'

                      Executive order 12333 is one of the foundational texts of modern US intelligence. A decades-old presidential order, it is an informal guide to the rules and regulations of American spycraft, such as the nominal ban on assassinations. It lacks the force of law in name if not in practice; lawyers in the intelligence agencies keep copies on their desks. "It is the Bible," said Vicki Divoll, a former legal counsel for the CIA and the Senate intelligence committee.
                      'Nominal ban on assassins' -- well, good point.  Yet these are the Chief Exec's instructions to his Exec Staff,  thus (as I see it) related to Prez' Constitutional duty/authority to Implement the Laws.  (we need an expert here.)

                      Also in that article -- DiFi and Rogers still defending NSA, but DiFi says they are not getting full reporting and she will change that (a non-position-change position-change, imo).  Nancy goes farther: due to Audit reporting --

                      The Democratic leader of the House of Representatives, Nancy Pelosi, a former senior member of the House intelligence committee, criticized the NSA on Friday, saying reports that it had overstepped its boundaries "extremely disturbing."

                      "Congress must conduct rigorous oversight to ensure that all incidents of non-compliance are reported to the oversight committees and the FISA court in a timely and comprehensive manner, and that appropriate steps are taken to ensure violations are not repeated," Pelosi said.

                      Pelosi was one of very few legislators briefed about the expansions of NSA surveillance activities after 9/11. She became a vocal critic of them when they were partially exposed under the Bush administration, yet once Barack Obama took office, her criticism ceased. She and the rest of the Democratic leadership worked hard last month to quash a legislative effort to end the bulk collection of Americans' phone records.


                      New messaging from Nancy gives party Faithful permission (instructions?) to be 'extremely disturbed' by NSA actions.  Good to know.

                      Sorry for telegraphic style.  Time pressures.  Best to you.

        •  I have been very curious (2+ / 0-)
          Recommended by:
          CroneWit, dharmafarmer

          about how the NSA has been managing to get itself re-tasked to domestic surveillance as well as foreign, and who the hell bought the stupid idea that the FISA court has the jurisdiction to grant warrant FOR domestic surveillance (much less the forwarding of collected data and analysis to domestic law enforcement for action against American citizens "if criminal activity is indicated."

          Then again, NSA could simply be using its offshore 'mirror' capabilities through GB's SooperSpies as a router on that. This could be so twisted there's no way to find out who's doing what to whom, and which 'authorities' have way overstepped their charters and bounds.

          ...but I sure as hell want 'em to try and trace this nefarious web. I don't have any confidence that will be honestly done, or reported to us if nefarious cross-connections are discovered.

          •  "The truth is coming, and it can't be stopped." (1+ / 0-)
            Recommended by:
            Joieau

            I know it seems like --

            there's no way to find out who's doing what to whom, and which 'authorities' have way overstepped their charters and bounds.
            But --
            "The truth is coming, and it can't be stopped."
              -----  Edward Snowden, American Whistleblower, 2013
            And these days, both truth and activism are crowdsourced.  Tracing the 'nefarious net' and changing the predictable trajectory  is our job.
            •  Hope you're right. (1+ / 0-)
              Recommended by:
              CroneWit

              But alas, I've heard that before...

              •  Think about it. 'Can't be stopped' isn't a slogan (1+ / 0-)
                Recommended by:
                Joieau

                (This is IIRC, in terms of timing.)

                Sometime after his first video interview, the Guardian hosted a livechat with him.  That's when he wrote 'The truth is coming, it can't be stopped.'

                This was not a statement of faith; it was a statement of fact.  The Guardian had already begun publishing his documents.  His dead-man's switch data had already been distributed.  Whether he lived or died, was arrested or rendered, the truth would continue to come out.

                When I say that certain effort is 'our job', I don't mean it's the job of Kossites of Dems or Progs,  It's the job of people -- of individuals who find themselves obligated from within to act in support of the change that is happening, now that some truth has been told.

                •  I do not have the faith (0+ / 0-)

                  in even the Greenwald/Guardian end of the MSM that many others do. "It can't be stopped" only means something if it isn't stopped, in the end. That remains to be seen. Particularly in light of Snowden's current status in Russia, where Vladimir Putin publicly claimed he wouldn't be granted asylum unless he stopped releasing material that might "embarrass" the U.S. government. As if the whole damned 3-ring circus so far hasn't been seriously embarrassing.

                  Hell, for that matter, I don't have a lot of faith in anybody's "dead-man's switch." It's a big world [wide web] out there, shit happens. I've seen such mechanisms fail more than once due to plain old paranoia of the holders, who are often not as brave as the whistleblower him/herself. But I am hopeful that what needs revealing will be revealed, and that the necessary changes will be accomplished.

                  Again alas, that "Hope" and "Change" thing hasn't worked out so well over the past half-decade either, when this country has been in desperate need of both. And voted accordingly - twice.

                  That's so sad it often wants to make me cry, despite my tough and crusty old hide.

                  •  You're welcome to your doubts and fears (1+ / 0-)
                    Recommended by:
                    Joieau

                    But please note that last week the Guardian exposed another whoppin' big chunk of NSA data, and nary a peep from Putin (while Snowden has been in contact with his father and his father's lawyer, planning Dad's visit).

                    The Guardian's continuing release of NSA documents does not depend on Snowden's actions now -- he gave a trove to the Guardian and to his backup people.  He structured the distribution this way expressly so that the information would be released even if he was out of the picture.  And Greenwald has hinted that one of the backup people is his friend, Assange.

                    The documents will continue to be released.  What happens as a result has already been and will continue to be, shaped by peple worldwide, not just in America.

                    You go ahead an have a sad, we all do that sometimes.

          •  I'm working on a diary, Joieau, (2+ / 0-)
            Recommended by:
            Joieau, CroneWit

            on that very topic which I hope to post in the next couple days.  

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