Category Archives: NSA

The President’s NSA Illusions

What are we being protected against?
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Now that President Obama’s promise in December of a “pretty definitive statement” about the nation’s electronic intelligence-gathering practices has been fulfilled with Friday’s speech, it is worth looking at what will actually happen as a result, at least in the near term, and what won’t.

The speech was preceded by seven months of arguably the most damaging leaks of national-security information—how we collect electronic intelligence—in the nation’s history, as the result of disclosures by former government contractor Edward Snowden. Yet the president made no recommendation as to how such leaks might be stopped.

To be sure, he mentioned the “avalanche of unauthorized disclosures” that resulted in “revealing methods to our adversaries that could impact our operations . . . for years to come.” But the rhetorical afterburners immediately kicked in to carry us to a higher altitude: “[T]he task before us now is greater than simply repairing the damage done to our operations or preventing more disclosures from taking place in the future.”

Forgive this brief demurrer, but consider: A young man gets a medical discharge from the military notwithstanding that his avocations include kickboxing, then has a rocky and brief tenure at the CIA that ends with his negotiated retention of his security clearance—which allowed him then to be employed by a military contractor in a job that gave him access to the secrets he later leaked—and then he manages to disable a complex computer system and steal more than a million-and-a-half documents. Are we not entitled at least to some brief assurance that the holes in the system that allowed Edward Snowden to do what he did have been sewn up?

But back to higher things. Perhaps the most definitive part of the president’s “pretty definitive statement” concerned the program whereby the National Security Agency gathers from telephone companies information about the calling number, the called number, and the date and time of domestic telephone calls. The information goes into an NSA database indicating whether a foreign number—say, of a terrorist safe house—has called or been called by a domestic number. If such contact has been made, the NSA can also determine other phone numbers that have been in communication with the domestic number.

The database, retaining information about millions of calls, is made available to only 22 NSA employees, who gain access only upon authorization from their superiors. It has been opened about 300 times in a year, there is no evidence it has been abused, and the president believes “it is important that the capability that this program is designed to meet is preserved.”

Nonetheless, Mr. Obama is now ending the program in its current form, with the feasibility of putting the database in the hands of a nongovernment entity to be explored by the director of national Intelligence and the attorney general. But effective immediately, the NSA may not consult the database unless permission is granted by the Foreign Intelligence Surveillance Court (FISC) based on a showing that the NSA has a reasonably articulable suspicion that there is cause to check out a number. The FISC provision sounds like a small thing. It isn’t—either practically or doctrinally.

Each application to the FISC must be prepared and reviewed by cadres of lawyers. When I served as U.S. attorney general, it was my job as the final member of that cadre to sign those applications. I would regularly be visited by a Justice Department lawyer from the National Security Division carrying several applications, each close to an inch thick. They were not in any sense light reading. The submission then had to be reviewed by FISC legal assistants, and eventually by one of the court’s judges.

To impose such a burden on the NSA as the price of simply running a number through a database that includes neither the content of calls nor the identity of callers is perverse. The president said that this step may be dispensed with only in a “true emergency,” as if events unfold to a musical score with a crescendo to tell us when a “true emergency” is at hand.

The president wants the database transferred to a private entity. Why? Because even though the database has not been abused—and notwithstanding the safeguards that surround it and the absence of motive in anyone with access to do anything but guard against a threat to national security—there exists the abstract possibility that the information could be used to draw a detailed profile of a person by mapping all the phone calls that the person has made or received.

Telephone carriers sensibly do not wish to be compelled to undertake the risks of storing the data, and could not as readily provide it to the NSA as the agency’s own storage facility. A private entity is likely to be far less secure than the NSA and staffed by less reliable personnel. The paradoxical result is that the Chinese and the Russians could wind up with easier access to the data than those trying to protect us.

Mr. Obama called upon Congress to establish a panel of nongovernment lawyers, presumably with security clearance, to “provide an independent voice in significant cases.” But last week, the Senate Intelligence Committee released a letter written by John D. Bates, a former FISC chief judge on behalf of current and former members of that court. The judges said “a privacy advocate is unnecessary—and could prove counterproductive—in the vast majority” of cases. The advocate, unable to communicate with the surveillance target or conduct an independent investigation, could not “constructively assist the Courts in assessing the facts.”

The president noted explicitly that a good deal of foreign tut-tutting over America’s capacity to tap into communications abroad came from people who themselves try to conduct the same surveillance on us and in any event are happy to rely on the information we obtain. Yet he insisted that we must do what no other nation does: offer the same privacy protections to citizens of other countries as we do to our own. So information about people who are not subject to U.S. laws and who owe this country no allegiance is to be gathered, stored and disseminated on the same terms as information about American citizens.

Whether wittingly or unwittingly, the choosing of venues for presidential speeches conveys a message. Thus in 2009 the president spoke at West Point to announce a troop surge in Afghanistan, and last spring at the National Defense University to describe his approach to defending the country.

Friday’s speech was delivered not at the NSA but at the Justice Department. The choice was revealing: The Justice Department’s engagement with the intelligence community in this administration has been at arm’s length and sometimes at sword’s point—notably in the refusal to recognize militant Islamism as the proper focus of intelligence-gathering, and in the reopening of previously closed investigations of CIA operators for alleged transgressions in the treatment of terrorists.

Many people whose job it is to decide how aggressively we will fight our enemies watched President Obama’s speech from the Justice Department and got the message—the “pretty definitive statement”—that when it comes to intelligence-gathering, the president would rather protect us from hypothetical abuses than from present dangers. That could be the most lasting effect of all.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).

Michael Mukasey: The President’s NSA Illusions – WSJ.com.

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Obama’s Political Surveillance

He proposes to change antiterror programs that he admits are necessary and haven’t been abused.
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President Obama finally joined the surveillance debate on Friday with a conflicted address, and perhaps it would have been better had he stayed out. His new antiterror proposals will do little to secure American privacy but they might make the country less safe.

Rhetorically Mr. Obama tried to satisfy all sides, meaning he fishtailed between irreconcilable positions. There’s what the President knows to be the reality that these programs are valuable and haven’t been abused. Then there are the critics that he is attempting to appease lest they succeed at turning Congress and the public against the programs.

Mr. Obama could rally enough support on Capitol Hill to retain the programs if he wanted, and such an appeal would include some of his Friday highlights: The world is more dangerous than ever due to “threats like terrorism, proliferation and cyber-attacks,” and post-9/11 surveillance has “prevented multiple attacks and saved innocent lives, not just here but around the globe as well.” Nothing suggests that “our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” All of this is true.

But Mr. Obama then argues that the National Security Agency must be more constrained because of “the danger of government overreach.” The most state-aggrandizing President since LBJ, and man who won’t discipline the IRS for its abuses, also invoked America’s “traditions of limited government.” This is doubly ironic given that the White House widely leaked to reporters that Mr. Obama believes he can be trusted with the surveillance status quo but a future Republican can’t.

Thus Mr. Obama announced that he will pursue or impose changes to NSA practice that he implicitly concedes are unnecessary. Rarely has national defense been so needlessly politicized.

Mr. Obama asked Congress to end the bulk collection of telephone metadata by government, even as he explained that the program would be vital “if a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks.” Some third party will do the job instead, and the NSA will only conduct individual searches with court approval.

Mr. Obama never explained why a nonprofit consortium would be more trustworthy, secure or less prone to political spying than the NSA, nor why privacy would be any more protected. Let’s hope the folks behind Target’s cyber security aren’t hired to do the job. The result of these changes could be that Chinese hackers will have better access to U.S. metadata than the NSA.

The Attorney General will also ask the Foreign Intelligence Surveillance Court to start reviewing all metadata queries during the “transition” to this third-party system. Come again? The judiciary is vested with the power to arbitrate cases under laws passed by Congress, not create ad hoc policy with the executive, so this is one more example of presidential buckpassing.

The President says the NSA will abandon its standard practice of following suspicious phone call patterns over three “hops,” or phone calls of separation, and instead go with merely two. He offered no rationale for not following as far as the data lead, so this is also a win for politics and terror cells three steps removed from a tip.

The worst idea is what he called “the unprecedented step” of extending privacy rights to foreigners, and he’s right about unprecedented. Heads of state deemed friendly will enjoy immunity from U.S. eavesdropping as their spooks continue to spy on the U.S., while other still-to-be-devised protections like those that used to apply only domestically will flow overseas to non-U.S. nationals. This will have no reciprocal benefit since no other intelligence service will believe the U.S. would be so dumb as to hamstring itself this way.

Even when he defended the NSA, Mr. Obama couldn’t resist his moralizing impulses. He observed that “totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.”

To say that an evil communist dictatorship explains anything about a self-governing, politically accountable democracy is insulting to Americans. No wonder our intelligence personnel are increasingly demoralized. Such rhetoric merely empowers the paranoids and incendiaries, who still say his reforms are inadequate because they don’t kill surveillance altogether.

The saving grace will have to be Congress, believe it or not. Speaker John Boehner responded with a 115-word statement that was far more eloquent than Mr. Obama’s 43-minute speech, declaring that the House “will not erode the operational integrity of critical programs that have helped keep America safe.” His fellow Republicans should follow that lead.

Obama’s Political Surveillance – WSJ.com.

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Single-handedly Endearing Countries to the US

Obama and friends on the left must think they’ve died and gone to … Oh, do they believe in heaven? Ah, Heaven on Earth in Obama’s USA.
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BERLIN — The diplomatic fallout from the documents harvested by the former National Security Agency contractor Edward J. Snowden intensified on Wednesday, with one of the United States’ closest allies, Germany, announcing that its leader had angrily called President Obama seeking reassurance that her cellphone was not the target of an American intelligence tap.

Washington hastily pledged that the German chancellor, Angela Merkel, leader of Europe’s most powerful economy, was not the target of current surveillance and would not be in the future, while conspicuously saying nothing about the past. After a similar furor with France, the call was the second time in 48 hours that the president found himself on the phone with a close European ally to argue that the unceasing revelations of invasive American intelligence gathering should not undermine decades of hard-won trans-Atlantic trust. [ Trust garnered, I might add, by unseamly players like the nasty George Bush.]

Both episodes illustrated the diplomatic challenge to the United States posed by the cache of documents that Mr. Snowden handed to the journalist Glenn Greenwald. Last week, Mr. Greenwald concluded a deal with the eBay founder Pierre Omidyar to build a new media platform that aims in part to publicize other revelations from the data Mr. Greenwald now possesses.

The damage to core American relationships continues to mount. Last month, President Dilma Rousseff of Brazil postponed a state visit to the United States after Brazilian news media reports — fed by material from Mr. Greenwald — that the N.S.A. had intercepted messages from Ms. Rousseff, her aides and the state oil company, Petrobras. Recently, the German newsmagazine Der Spiegel, which has said it has a stack of Snowden documents, suggested that United States intelligence had gained access to communications to and from President Felipe Calderón of Mexico when he was still in office.

Secretary of State John Kerry had barely landed in France on Monday when the newspaper Le Monde disclosed what it said was the mass surveillance of French citizens, as well as spying on French diplomats. Furious, the French summoned the United States ambassador, Charles H. Rivkin, and President François Hollande expressed “extreme reprobation” for the reported collection of 70 million digital communications from Dec. 10, 2012, to Jan. 8, 2013.

In a statement published online, James R. Clapper Jr., the director of national intelligence, disputed some aspects of Le Monde’s reporting, calling it misleading and inaccurate in unspecified ways.

He did not address another report by Le Monde that monitoring by the United States had extended to “French diplomatic interests” at the United Nations and in Washington. Information garnered by the N.S.A. played a significant part in a United Nations vote on June 9, 2010, in favor of sanctions against Iran, Le Monde said.

Two senior administration officials — from the State Department and the National Security Council — had arrived in Berlin only hours before the German government disclosed on Wednesday that it had received unspecified information that Ms. Merkel’s cellphone was under surveillance.

If confirmed, that is “completely unacceptable,” said her spokesman, Steffen Seibert. The accusations followed Der Spiegel’s disclosures in June of widespread American surveillance of German communications, which struck an especially unsettling chord in a country scarred by the surveillance undertaken by Nazi and Communist governments in its past.

Mr. Seibert quoted the chancellor, who was raised in Communist East Germany, as telling Mr. Obama that “between close friends and partners, which the Federal Republic of Germany and the United States of America have been for decades, there should be no such surveillance of the communications of a head of government.”

“That would be a grave breach of trust,” Mr. Seibert quoted her as saying. “Such practices must cease immediately.”

The government statement did not disclose the source or nature of its suspicions. But Der Spiegel said on its Web site that Ms. Merkel acted after it submitted a reporting inquiry to the government. “Apparently, after an examination by the Federal Intelligence Service and the Federal Office for Security in Information Technology, the government found sufficient plausible grounds to confront the U.S. government,” Der Spiegel wrote.

ARD, Germany’s premier state television channel, said without naming its sources that the supposed monitoring had targeted Ms. Merkel’s official cellphone, not her private one.
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Anger Growing Among Allies on U.S. Spying – NYTimes.com.

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U.S. monitored Merkel’s phone?

The Left is in an uproar! I’m sure there will be calls for Congressional inquiry soon.
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BERLIN (Reuters) – The German government has obtained information that the United States may have monitored the mobile phone of Chancellor Angela Merkel and she called President Barack Obama on Wednesday to demand an immediate clarification, her spokesman said.

White House spokesman Jay Carney said Obama had assured Merkel that the United States was not monitoring the communications of the chancellor.

But the strongly worded statement by Merkel’s spokesman suggested that Germany was not fully satisfied. It demanded an “immediate and comprehensive” clarification of U.S. surveillance practices.

“She made clear that she views such practices, if proven true, as completely unacceptable and condemns them unequivocally,” the statement read

Merkel calls Obama over suspicion U.S. monitored her phone – Yahoo News.

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