Thursday, December 12, 2013

Leahy: In any country, this legal interpretation is extraordinary

Yesterday afternoon, the Senate Judiciary Committee held an oversight hearing.  The first panel was NSA Director Keith Alexander, Deputy Attorney General James Cole and Robert S. Lift, the General Counsel for the National Intelligence's Office of the Director.  The second panel was Edward Black (Computer and Communication Industry Association), Julian Sanchez (Cato Institute) and Carrie F. Cordero (Georgetown Law).  The Chair is Senator Patrick Leahy and the Ranking Member is Senator Charles Grassley.

Senator Patrick Leahy:  We're going to be renewing our examination of government surveillance activities.  It seems like every time that we have one of these there's been a series of new revelations and the latest disclosures raise some significant questions about the scope and wisdom of our surveillance activities both at home and abroad.  So it's clear that we have a lot more oversight work to do.  The last week, there have been press reports that the NSA is collecting billions of records a day on cell phone locations around the world and can track individuals and map their relationship.  There's also been reports the NSA is monitoring online video games which, just in the press reports, raises a question: Because we can do something, does it really make sense to do it?  Especially as last month the administration released a  set of documents revealing details about yet another massive dragnet collection program, in addition to the phone records program. And this time the NSA was gathering in bulk an enormous amount of internet metadata, under the pen register and trap and trace device authority in FISA. Now I'll just note, just like Section 215, there is nothing in the pen register statute that expressly authorizes the dragnet collection of data on this scale. Although the Internet metadata collection program, we are told,  is not currently operational, it resulted in a series of major compliance problems -- just like the Section 215 program. According to the FISA Court, the NSA exceeded the scope of authorized acquisition not just once or twice, but "continuously" during many of the years the program was in operation. Again another reason we should have a lot more oversight -- and a lot more open oversight. The problems were so severe that the FISA Court ultimately suspended the program entirely for a period of time before approving its renewal. But once renewed, the government asserted that this bulk collection was an important foreign intelligence tool -- which is the claim it makes now about the Section 215 phone records .But then in 2011 the government ended this valuable tool as they called it, this internet metadata program because, as Director Clapper explained, it was no longer meeting "operational expectations." It is important to note that the administration does not believe that there is any legal impediment to re-starting this bulk Internet data collection program if it --  or a future administration --  wanted to do so. The legal justification for this Internet metadata collection is troubling. As with the Section 215 program, the internet metadata program was based on a "relevance" standard. And as with the Section 215 program, there is no adequate limiting principle to this legal rationale. The American people have been told that all of their phone records are relevant to counterterrorism investigations. Now they are told that all Internet metadata is also relevant; and apparently fair game for the NSA to collect. In any country, in any country, this legal interpretation is extraordinary,  it goes beyond extraordinary in the United States.  

Iraq got mentioned in the hearing.  Briefly.  Wrongly.  But Alexander did bring it up.

Director Keith Alexander:  In my perspective, the threats are growing.  When we look at what's going on in Iraq today, what's going on in Syria, the amount of people killed from 1 September to 3 December is over 5,000 from terrorist related acts in Iraq, Syria and several other countries around the world.  In Iraq alone, in 2012, the total number killed were 2400.  From 1 September to 3 December, that has risen to 2200+ in a three month period.  It's on the verge of a sectarian conflict.  The crisis in the Middle East is growing.  And the threat to us from terrorist activities and safe hasen -- havens -- and terrorists being radicalized are growing.

Alexander has a weird way of speaking. You may notice it in the quotes. (You will when we do a lengthy exchange.)  Senator Grassley brought something "up."  He didn't bring it "out," as Alexander said.  That's not just imprecise, it's wrong.  And people recording data, analyzing it, should have better grasp of communication and of the language.  But what's even worse than his speaking would have to be his facts.

Who's deciding what terrorism is in Iraq?

If we mean killing, Alexander's yapping but nothing coming out of his mouth makes sense.  In 2012, the total number of Iraqis killed in violence was not 2400.  Iraq Body Count provides the number 4574.  The United Nations notes 3200 just from the start of July 2012 to the end of December 2012.

As for 2200+ from September 1st to December 3rd?

UN figures are 979 violent deaths for September, 979 for October, and 659 for November.  The UN hasn't released the total for the first three days of December but already 2617.  What figures is Alexander using or, possibly, what figures did he think he was using?

For example, he thought about libraries too.  Any library patron that just visited a library once a year for three years would have been puzzled by the examples and 'logic' Alexander offered.

How wrong was he?

At one point, Chair Leahy cut him off with, "Let's stick to the facts and not talk about libraries.  I had my first library card when I was 4-years-old.  I understand libraries.  Let's talk about the NSA."

Yesterday morning, sitting in a Senate Veterans Affairs Committee hearing and hearing the same crap from the VA, dusted off as they pretend that they are actually accomplishing something, I typed (about Barack's Foreign Policy Board) in the morning entry:

And sprinkled in, look, there's Carla who will ensure that the interests of Coca Cola, Chevron  and JP Morgan Chase are protected.   If you look at the list and you know the people, you'll realize Corporate America has personhood in Barack's administration, Corporate America's interests are served over and over.
Don't see anyone on the list looking out for you?  That's because the American people don't matter in this administration.

Director Alexander proved my point for me approximately four hours later when he declared to the Senate Judiciary Committee, ". . . but taking these programs off the table is not the thing to do.  I do agree with this discussion with industry that you brought up as well, Senator.  Industry ought to be a player  They have been hurt by this and I think unfairly hurt."

Isn't that sweet?

Alexander is willing to s**t on the Constitution but he's bothered that his actions might harm business.  That's so very sweet.

Again, Corporate America is always served by the administration, it's just the American people who either get ignored or screwed by the administration.

Senator Al Franken:  Do you think the American people have the right to know, roughly, how many of them have had their information collected by the NSA?

Director Keith Alexander:  I do, Senator.  I think the issue is how do you describe that?  Those that are under a court order -- so under FISA, as you know, to collect the content of a communication, we have to get a-a warrant.  Uhm, the issue would be almost in the Title III Court -- you tell someone, a US person, who may not be a US citizen, that we're attracting -- that we're tracking them in the United States or that we have identified that.

Senator Al Franken: I'm not suggesting that you have to tell people that they're being surveilled, that they, personally, are a suspect. What I'm saying is the American people have a right to know how many American people have had their information collected.  That's a different question.  I wasn't suggesting that we tip people off that they're suspects.

Director Keith Alexander: Yeah, so I-I-I think in broad terms, absolutely.  And let me give you an example --

Senator Al Franken:  In broad terms

Director Keith Alexander:  Yeah.  So, for example, under 215 today, less than 200 numbers are approved for reasonable articulable suspicion for being searched in that data base. 

Senator Al Franken:  200?

Director Keith Alexander:  200 numbers 

Senator Al Franken:  That's 200 orders or 200 people?

Director Keith Alexander:  200 numbers.  Some of those 200 may be multiple numbers per person.  Those numbers could be foreign and domestic.  In fact, they are.  But that's the total number for that category, for section 215 today, under that program.  The other one that I think and, uh, I think, uh, the Deputy Attorney General mentioned is we can also put out more about what we're doing under the FISA 702 program.  That we've compelled industry to do in a more transparent manner.  The issue is how do we do that without revealing some of, uh, our own capabilities.  And we're working to the interagency to get resolution on that. Did I say that right?

Senator Al Franken:  Okay, I'm being told by staff that there's actually a number of people that have had their phone numbers searched not collected.

Director Keith Alexander:  So-so-so under 215 at all the data's going into a repository.

Senator Al Franken:  Meta data.

Director Keith Alexander:  Meta data. So if for example, I'm talking to a foreign terrorist, my number would automatically hit that link.  In fact, you would probably want to know that.  I know the White House would.

Senator Al Franken: Right, we need to know that.

Director Keith Alexander:  So the issue would be, how many of those.  What we would do is we'd look at those and, based on our analysis, give those numbers that are appropriate to the FBI for them to then go through their appropriate process to look at those numbers.

Senator Al Franken:  Okay.  Okay.  There's a difference between collected and searched.  But that's -- Okay, but let's talk about 7 --

Director Keith Alexander:  02.

Senator Al Franken:  02. Uhm, that's supposed to target non-Americans, right?  Foreign persons?

Director Keith Alexander:  Reasonably believed to be outside the United States.  

Senator Al Franken:  Right.  Are Americans -- Shouldn't the American people know how many Americans have gotten caught up in that?

Director Keith Alexander:  Uhm, that again is -- and I don't mean to hedge, let me just tell you the difficulties that if-if a terrorist that we're going after is talking to another person, in that communication, there's nothing that says 'I'm an American and here's my -- you know -- my social security number.'  So the fact is, when we're tracking a terrorist, if they're talking to five people and one of those is American, chances of us knowing that are very small.  If we find out that that's an American, then there are procedures that the Attorney General and the courts have given us that we have to do to minimize that data on that American.

Senator Al Franken:  Okay, well, I guess my question is -- is that my bill asks -- calls for --the NSA to report how many American's information has been searched, has been looked at by agents?  And I'm not talking about necessarily a precise number but 702 says that you can only look at non-Americans.  And -- Look, my feeling is this, the American people are skeptical of executive power.

Director Keith Alexander:  Right.

Senator Al Franken:  That when there is a lack of transparency, they tend to suspect, they tend to be very skeptical and suspect abuse.  And part of the reason to have transparency is for people to be able to make their decisions based on some real information about whether or not this power is being abused or not.  Now I believe you gentlemen have our national security at interest -- that's your interest.  That is your interest.  But I also believe that -- You keep saying there's oversight from all three branches of government?  We're one of the branches and we're doing the oversight, okay?  And, my feeling, doing the oversight, is that I would be more comfortable and that the American people would be more comfortable and feel that they can decide for themselves if they knew how many Americans were being caught up in a program like 702 that is designed by law not to target Americans.

From the start -- and the conversation continued beyond what we've quoted -- the question Al Franken was asking was for the American people to be provided with a rough average number of how many Americans were being spied on by the NSA.  And there was no answer given.  There was a lot of nonsense offered by Alexander.

Does he not understand English?

He's over communication and he can't speak very well and he doesn't seem to comprehend what others are saying.

But what really stands out is that he doesn't think about the American people.  That's in part because he's violating the law and by pretending not to focus on people he can pretend he doesn't know who is being tracked -- is it an American or not?

He reduces people to meta data.

Industries and business, he cares about.

He's able to ignore the law, he's able to ignore the Constitution because this isn't about people to him anymore.  His testimony argues for serious training at the NSA on democracy and the rights of citizens.  If such workshops were done, maybe the NSA would be less likely to act in illegal fashion.

Chair Leahy raised J. Edgar Hoover and how he disregarded the Constitution.  Leahy wondered what might have happened if Hoover had the power the NSA does today.

It's an important question to ask.

I didn't plan to write about this but a friend who was covering the hearing yesterday afternoon called last night needing some quotes (I take notes of an entire hearing if I attend, it's often the only way to stay awake) and I shared my thoughts while I flipped through my notes.  The friend called this morning to express surprise that I hadn't gone on to write about the hearing.  That's the only reason I'm covering it this morning.

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