aGameOfThrones
10-01-2014, 12:16 AM
Jonathan McIntosh
A set of newly declassified documents shows definitively and explicitly that the United States intelligence community relies heavily on what is effectively unchecked presidential authority to conduct surveillance operations, as manifested through the Reagan-era Executive Order (EO) 12333.
And at a more basic level, the new documents illustrate that the government is adept at creating obscure legalistic definitions of plain language words, like "collection of information," which help obfuscate the public’s understanding of the scope and scale of such a dragnet.
The documents were first published on Monday by the American Civil Liberties Union (ACLU) after the group filed a Freedom of Information Act lawsuit with the Media Freedom and Information Access Clinic at Yale Law School.
As Ars reported previously, "twelve triple three" is a presidential order that spells out the National Security Agency’s authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W. Bush. Famously, the NSA expanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.
"These documents are a good first step to understanding how EO 12333 is being used," Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, told Ars. "We already know that it's used in a very similar manner to Section 702 of the Foreign Intelligence Surveillance Act, which is being used as part of collection techniques that collect wholly domestic (American) e-mail. We also know [EO 12333 is] used for the NSA’s interception of Internet traffic between Google's and Yahoo!'s data centers abroad, the collection of millions of e-mail and instant message address books, the recording of the contents of every phone call made in at least two countries, and the mass cell phone location-tracking program. The NSA—and the White House—must release more material on EO 12333. The President has encouraged a public discussion on the NSA's signals intelligence activities. He must follow through with ensuring an open, and honest, debate on EO 12333 activities."
“The primary source” of the NSA’s legal power
In a rare instance of clarity and precision, a "legal fact sheet" authored by the NSA and dated June 19, 2013 explains various elements of EO 12333.
FISA only regulates a subset of NSA's signals intelligence activities.
NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 12333.
Since 1981, EO 12333 has provided the President's authoritative written instruction for the organization and operation of the United States Intelligence Community (IC).
An internal training document for a course taught with the NSA entitled "Overview of Signals Intelligence (SIGINT) Authorities" notes that:
Executive Order 12333 was issued by the President of the United States to provide for the effective conduct of US intelligence activities and the protection of the rights of US persons. It is the primary source of NSA's foreign intelligence-gathering authority.
Executive Order 12333 governs foreign intelligence activities across the Intelligence Community. Derivative documents such as DoD Regulation 5240.1-R, NSA/CSS Policy 1-23, and USSID SP0018 establish policies and procedures consistent with Executive Order 12333.
Under Executive Order 12333, NSA collects, processes, analyzes, produces, and disseminates signals intelligence information and data. These activities are approved for foreign intelligence purposes, counterintelligence purposes, and for the conduct of military operations.
Included in this set of documents is a previously released 74-page memo (dated May 6, 2004) to the attorney general to outline the legality of the President’s Surveillance Program. The older, publicly released version has substantial redactions. The newly released version unredacts the already known name of the program, "Stellar Wind." Both versions, which appear to be otherwise identical, also contain this noteworthy section:
The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.
The new trove of documents also contains an extremely heavily redacted document entitled "Memorandum for the Attorney General" (dated November 4, 2001) from John Yoo, the then-deputy assistant attorney general, to John Ashcroft, the then-attorney general.
Among the rare lines that are not blacked out are these:
Thus, unless Congress made a clear statement in [the Foreign Intelligence Surveillance Act] that it sought to restrict presidential authority to conduct warrantless searches in the national security area—which it has not—then the statute must be construed to avoid such a reading.
…
We do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.
Yoo, who is now a law professor at the University of California, Berkeley, did not immediately respond to Ars’ request for comment.
Thirty-year NSA veteran William Binney previously told Ars that drastic measures such as the NSA’s Fairview program—described by other intelligence whistleblowers as the NSA’s project to "own the Internet"—are authorized under EO 12333. When pointed to these new documents obtained by the ACLU, he expressed nonchalance.
"We have known for quite some time that they have been using EO 12333 paragraph 2.3.C to collect approximately 80 percent of all US-to-US phone calls and Internet data, and that Fairview is the main program to do this," he told Ars on Monday. "So no surprise there."
What exactly is “collecting?”
The new documents show that the government is twisting words with obvious English meanings to fit strange definitions. In an August 2004 "Intelligence Law Handbook" produced by the Defense Intelligence Agency (DIA), the agency tells its officers that "it is necessary to stop first and adjust your vocabulary" in order to understand the Department of Defense’s 64-page implementation of EO 12333, known as DoD 5240.1-R.
The Handbook states that "collecting" information doesn’t fit our traditional understanding. Rather, information can have been said to be collected…
only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties ... (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information.
It continues:
For the purposes of DoD 5240.1-R, "collection" is officially gathering or receiving information, plus an affirmative act in the direction of use or retention of that information. For example, information received from a cooperating source (e.g., the FBI) about a terrorist group is not "collected" unless and until that information is included in a report, entered into a data base, or used in some other manner which constitutes an affirmative intent to use or retain that information.
This is par for the course, according to Binney.
"No surprise with the word game; we have had direct experience with that game for decades," he added. "This all means that no one can trust the [Department of Justice] or [intelligence community] agencies NSA/CIA/DIA/FBI/etc. to tell the truth to anybody. That's why we suggested that the Congress/courts needed a way to verify what they were being told. That has been ignored."
http://arstechnica.com/tech-policy/2014/09/new-docs-show-how-reagan-era-executive-order-unbounded-nsa/
A set of newly declassified documents shows definitively and explicitly that the United States intelligence community relies heavily on what is effectively unchecked presidential authority to conduct surveillance operations, as manifested through the Reagan-era Executive Order (EO) 12333.
And at a more basic level, the new documents illustrate that the government is adept at creating obscure legalistic definitions of plain language words, like "collection of information," which help obfuscate the public’s understanding of the scope and scale of such a dragnet.
The documents were first published on Monday by the American Civil Liberties Union (ACLU) after the group filed a Freedom of Information Act lawsuit with the Media Freedom and Information Access Clinic at Yale Law School.
As Ars reported previously, "twelve triple three" is a presidential order that spells out the National Security Agency’s authority to conduct signals intelligence, among other things. EO 12333 was amended three times under President George W. Bush. Famously, the NSA expanded its domestic surveillance operation after the September 11 attacks without a direct order from the president, who later provided cover under EO 12333.
"These documents are a good first step to understanding how EO 12333 is being used," Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, told Ars. "We already know that it's used in a very similar manner to Section 702 of the Foreign Intelligence Surveillance Act, which is being used as part of collection techniques that collect wholly domestic (American) e-mail. We also know [EO 12333 is] used for the NSA’s interception of Internet traffic between Google's and Yahoo!'s data centers abroad, the collection of millions of e-mail and instant message address books, the recording of the contents of every phone call made in at least two countries, and the mass cell phone location-tracking program. The NSA—and the White House—must release more material on EO 12333. The President has encouraged a public discussion on the NSA's signals intelligence activities. He must follow through with ensuring an open, and honest, debate on EO 12333 activities."
“The primary source” of the NSA’s legal power
In a rare instance of clarity and precision, a "legal fact sheet" authored by the NSA and dated June 19, 2013 explains various elements of EO 12333.
FISA only regulates a subset of NSA's signals intelligence activities.
NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 12333.
Since 1981, EO 12333 has provided the President's authoritative written instruction for the organization and operation of the United States Intelligence Community (IC).
An internal training document for a course taught with the NSA entitled "Overview of Signals Intelligence (SIGINT) Authorities" notes that:
Executive Order 12333 was issued by the President of the United States to provide for the effective conduct of US intelligence activities and the protection of the rights of US persons. It is the primary source of NSA's foreign intelligence-gathering authority.
Executive Order 12333 governs foreign intelligence activities across the Intelligence Community. Derivative documents such as DoD Regulation 5240.1-R, NSA/CSS Policy 1-23, and USSID SP0018 establish policies and procedures consistent with Executive Order 12333.
Under Executive Order 12333, NSA collects, processes, analyzes, produces, and disseminates signals intelligence information and data. These activities are approved for foreign intelligence purposes, counterintelligence purposes, and for the conduct of military operations.
Included in this set of documents is a previously released 74-page memo (dated May 6, 2004) to the attorney general to outline the legality of the President’s Surveillance Program. The older, publicly released version has substantial redactions. The newly released version unredacts the already known name of the program, "Stellar Wind." Both versions, which appear to be otherwise identical, also contain this noteworthy section:
The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.
The new trove of documents also contains an extremely heavily redacted document entitled "Memorandum for the Attorney General" (dated November 4, 2001) from John Yoo, the then-deputy assistant attorney general, to John Ashcroft, the then-attorney general.
Among the rare lines that are not blacked out are these:
Thus, unless Congress made a clear statement in [the Foreign Intelligence Surveillance Act] that it sought to restrict presidential authority to conduct warrantless searches in the national security area—which it has not—then the statute must be construed to avoid such a reading.
…
We do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.
Yoo, who is now a law professor at the University of California, Berkeley, did not immediately respond to Ars’ request for comment.
Thirty-year NSA veteran William Binney previously told Ars that drastic measures such as the NSA’s Fairview program—described by other intelligence whistleblowers as the NSA’s project to "own the Internet"—are authorized under EO 12333. When pointed to these new documents obtained by the ACLU, he expressed nonchalance.
"We have known for quite some time that they have been using EO 12333 paragraph 2.3.C to collect approximately 80 percent of all US-to-US phone calls and Internet data, and that Fairview is the main program to do this," he told Ars on Monday. "So no surprise there."
What exactly is “collecting?”
The new documents show that the government is twisting words with obvious English meanings to fit strange definitions. In an August 2004 "Intelligence Law Handbook" produced by the Defense Intelligence Agency (DIA), the agency tells its officers that "it is necessary to stop first and adjust your vocabulary" in order to understand the Department of Defense’s 64-page implementation of EO 12333, known as DoD 5240.1-R.
The Handbook states that "collecting" information doesn’t fit our traditional understanding. Rather, information can have been said to be collected…
only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties ... (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information.
It continues:
For the purposes of DoD 5240.1-R, "collection" is officially gathering or receiving information, plus an affirmative act in the direction of use or retention of that information. For example, information received from a cooperating source (e.g., the FBI) about a terrorist group is not "collected" unless and until that information is included in a report, entered into a data base, or used in some other manner which constitutes an affirmative intent to use or retain that information.
This is par for the course, according to Binney.
"No surprise with the word game; we have had direct experience with that game for decades," he added. "This all means that no one can trust the [Department of Justice] or [intelligence community] agencies NSA/CIA/DIA/FBI/etc. to tell the truth to anybody. That's why we suggested that the Congress/courts needed a way to verify what they were being told. That has been ignored."
http://arstechnica.com/tech-policy/2014/09/new-docs-show-how-reagan-era-executive-order-unbounded-nsa/