If you were following the news cycle(s) on Tuesday and Wednesday, both Charlie Savage at the NY Times, and Spencer Ackerman and James Ball over at The Guardian, ran significant stories regarding a letter sent by Director of National Intelligence James Clapper to Senate Intelligence Committee member Ron Wyden (D-OR), wherein DNI Clapper acknowledged that the NSA’s “…intelligence analysts have searched for Americans’ emails and phone calls within the repository of communications that the government collects without a warrant.”
(Please also note Kossack Lost Left Coaster’s diary from Wednesday on the story, linked HERE.)
As you’ll read farther down below, Wednesday’s story has become stunningly “curiouser,” thanks to journalist, topic expert and blogger Marcy Wheeler’s sublime research and review of the materials in question, per the headline in her blog post, late Wednesday, that: “James Clapper Continues to Cover Up FBI’s Back Door Searches on US Targets.”
And, as you’ll also see in her latest blog post, she’s doing more than just “inferring” that the sheer volume (as noted by none other than Director of National Intelligence James Clapper) of the FBI’s ongoing, warrantless surveillance of domestic phone call content may very well end up dwarfing the substantial wiretapping that the NSA’s been doing in this regard until now, once (and if) all of the facts come to light.
Interestingly, Wheeler, who’s been on top of this story since day one (to the point where her expertise on this subject matter is so highly regarded that one could actually read her tweets with both Savage and Ackerman, over at her blog earlier in the day, Tuesday, wherein she was briefing them on her knowledge of the subject matter before and after they published their respective articles), reminded her audience that she was writing about this story, and the obfuscated facts contained within it, back in August.
In Clapper’s public testimony before the Senate Intelligence Committee in late January, after being grilled by Wyden, he deceptively noted that this domestic surveillance information was classified, and thus couldn't be discussed in a public forum. At that point, Clapper told Wyden that he'd respond to the question and provide more information at a later date.
That “later date” was this past Friday, when he sent the letter, referenced and linked below, to Wyden.
First, Savage over at The Times…
Letter Puts Focus on U.S. Searches for Americans’ Emails and CallsHere's (IMHO, the better article on Tuesday’s/Wednesday’s story by) Ackerman and Ball on the story over at the Guardian…
By CHARLIE SAVAGE
NEW YORK TIMES
APRIL 1, 2014 5:08PM
WASHINGTON — United States intelligence analysts have searched for Americans’ emails and phone calls within the repository of communications that the government collects without a warrant, according to a letter from James R. Clapper Jr., the director of national intelligence, to Senator Ron Wyden, Democrat of Oregon.
The March 28 letter was not the first official confirmation that both the National Security Agency and the C.I.A. had carried out such searches. But its release served to elevate attention to the fact that the activity, which Mr. Wyden has criticized as a “backdoor search” loophole to warrant requirements, was not just theoretical…
NSA performed warrantless searches on Americans' calls and emails – ClapperMost pertinent to this post, here’s Marcy Wheeler’s incisive commentary, from late Wednesday afternoon…
• NSA used 'back door' to search Americans' communications
• Director of national intelligence confirms use of new legal rule
• Data collected under 'Prism' and 'Upstream' programs
Spencer Ackerman in Washington and James Ball in New York
The Guardian, Tuesday 1 April 2014 16.17 EDT
US intelligence chiefs have confirmed that the National Security Agency has used a "back door" in surveillance law to perform warrantless searches on Americans’ communications.
The NSA's collection programs are ostensibly targeted at foreigners, but in August the Guardian revealed a secret rule change allowing NSA analysts to search for Americans' details within the databases.
Now, in a letter to Senator Ron Wyden, an Oregon Democrat on the intelligence committee, the director of national intelligence, James Clapper, has confirmed for the first time the use of this legal authority to search for data related to “US persons.”…
…The legal authority to perform the searches, revealed in top-secret NSA documents provided to the Guardian by Edward Snowden, was denounced by Wyden as a “backdoor search loophole.”…
…Clapper did not disclose how many warrantless searches had been performed by the NSA.
Confirmation that the NSA has searched for Americans’ communications in its phone call and email databases complicates President Barack Obama’s initial defenses of the broad surveillance in June…
(I strongly suggest that readers should make an effort to read her entire post by clicking the headline in the blockquote, below, since there’s much more to her analysis, and the graphics of Clapper’s/NSA’s original doc’s are quite compelling. NOTE: Where Marcy discusses “Bates,” in the excerpt below, she’s referring to former FISA Court Presiding Judge John D. Bates.)
James Clapper Continues to Cover Up FBI’s Back Door Searches on US Targets(Bold type is diarist’s emphasis.)
By emptywheel (Marcy Wheeler)
Published April 2, 2014
In their stories catching up to my past reporting on the Semiannual Compliance Report‘s discussion of backdoor searches, the Guardian and NYT focus on NSA and (in the case of the NYT) CIA. Neither mentions that the FBI also does such back door searches, and has had the authority to do so longer than the foreign intelligence agencies.
That may be because Ron Wyden always focuses on the NSA, and as a result James Clapper mentioned the NSA in his letter to Wyden.
The public record makes clear that FBI has this authority. A footnote to one of the paragraphs describing oversight over NSA and CIA’s back door searches explains that “FBI’s minimization procedures had already provided that agency the ability,” followed by redacted descriptions…
… Bates makes it clear (even though the reference to FBI is redacted) that FBI can even back door search data collected in the United States on US persons.
Given how little we know about back door searches, it’s hard to know which is worse. As Bates notes, there will likely be more Americans’ records accessible via a back door search off an American target. But at least in that case, FISC has found there is probable cause to believe the target is a foreign agent or terrorist. Under Section 702, the Agencies can collect data on people without that same level of proof, and do so in much greater volume. Certainly, Ron Wyden and Mark Udall seem primarily concerned about the Section 702 targeting (which includes the FBI, as the Compliance report makes clear).
Still, Clapper’s greater secrecy about FBI’s back door searches makes me worried they are in some way even worse.
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It’s also quite pertinent to this overarching story about our country’s exceptionally invasive and massive domestic wiretapping efforts that we’re reminded of the inconvenient truth that we’re only scratching the surface here with regard to the many ways by which the NSA, FBI and many other federal, as well as countless local law enforcement agencies, tap into our everyday phone, Internet, and general communications content.
On Friday, James Clapper finally provided Ron Wyden an unclassified response to a question he posed on January 29, admitting that the NSA conducts back door searches. (via Charlie Savage)(As Marcy noted last Thursday, March 26th, virtually everywhere she mentions, “metadata,” she is, in fact, talking about call content, because it’s now generally understood that “metadata” is “content.”)
As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA.It has taken just 9 months for Clapper to admit that, contrary to months of denials, the NSA (and FBI, which he doesn’t confirm but which the Report makes clear, as well as the CIA) can get the content of Americans’ communications without a warrant…
Remember, there are at least five different legal regimes involved in the metadata dragnet:The Central Intelligence Agency (CIA) (yes, even though it’s illegal for this organization to conduct domestic surveillance, it has been acknowledged in recent press reports that it does, indeed, do this), the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the Department of Homeland Security (DHS) all conduct their own, massive surveillance operations, independently, and also in conjunction with other government agencies.
• EO 12333 authority for data going back to at least 1998
• Stellar Wind authority lasting until 2004, 2006, and 2007 for different practices
• PATRIOT-authorized authorities for Internet (until 2011) and phone records (until RuppRoge or something else passes)
• SPCMA, which is a subset of EO 12333 authority that conducts potentially problematic contact chaining integrating US person Internet metadata
• Five Eyes, which is EO 12333, but may involve GCHQ equities or, especially, ownership of the data
To a lesser extent, another eight (give or take) federal intelligence/law enforcement entities (i.e.: Alcohol, Tobacco and Firearms (ATF); U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement's (ICE), and the Internal Revenue Service (IRS), among others) also engage in these activities.
On top of this, it’s also a known fact that local law enforcement organizations have conducted over a million warrantless cellular wiretaps, pen register(s) and track and trace requests per year over the past few years.
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In recent months, it has been noted countless times by our nation’s elected leaders that they are doing everything they can to restore public confidence in our nation’s intelligence services. But, we’ve reached a point in this extended kabuki where many in the media and even (leading Democrats) on Capitol Hill are publicly doubting the sincerity of those sentiments.
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