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The Lives of Others: Does Patriot Act Give NSA Authority to Tap Your Phone?

 

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The Lives of Others,” a film documenting the workings of a surveillance state run by the Stasi, the secret domestic spymasters who kept the Soviet lid on in East Germany from the end of World War II until the wall came down, paints a grim picture of what happens when a government begins to treat its own citizens as possible perpetrators of criminal activity, or as “subversive” agents out of step with the political agendas of their leaders.

The recent revelation that the National Security Agency (NSA) is using its legal authority to collect telephone metadata linked to every phone line in the United States was at first tempered by Intel Chief James Clapper’s claim that NSA would never tap into the actual content of our private phone calls — no record of callers’ or recipients’ names.

We know now, thanks to Edward Snowden, the 29 year-old whistleblower and Booze Allen Hamilton contractor working onsite at a NSA facility in Hawaii, that Clapper is lying, that wireless surveillance — wiretapping phone lines of Americans who are not under suspicion of any wrongdoing — is standard operating procedure at NSA.

We know also that government officials and supporters in Congress believe the legal justification for these intrusions lies in the post-9/11 decision of Congress and the White House to extend the President’s authority to order warrantless wiretapping via the Foreign Surveillance Security Act (FISA) and the President’s power, under the Constitution, to authorize “warrantless wiretaps to protect national security.”

Most Americans, of course, have assumed that this sort of targeted surveillance would be directed toward individuals the government had solid reason to believe represented a terrorist or criminal threat. Not toward them. Not blanket access to everyone’s phone conversations.

And they’re right.

FISA, if you read the legislation closely, was designed to enhance surveillance of foreign nationals (foreign counterintelligence), suspects authorities have reason to believe are linked to suspicious activities, and wiretaps must still be approved by specially appointed FISA judges –see below:

The FISA resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s usage of federal resources to spy on political and activist groups, which violates the Fourth Amendment.[4] The act was created to provide Judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the “surveillance will acquire the contents of any communication to which a United States person is a party”. If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

But this is not how it’s rolling out. Warrantless domestic wiretapping began as early as 2005, and the current court order, says the Center for Constitutional Rights, is the broadest surveillance order to ever have been issued; it requires no level of suspicion and applies to all Verizon (and now we know all providers’) subscribers anywhere in the the United States. Be brave and repeat after me: executive over-reach.

Think Again

Legal scholars, some members of Congress, and a great number of ordinary Americans stunned by Snowden’s revelations are are challenging the legality of the government’s cavalier use of warrantless wiretaps, and while the White House, DOJ, and NSA are calling for Snowden’s head, a citizen movement (one petition has hit the White House website) to absolve Snowden of wrongdoing is steadily building.

Now, I happen to be a Verizon customer myself, so I’ll understand if you don’t want to respond to this post, email me, or maybe even touch the computer screen on which these words appear. It seems likely that this blog, like so many others, is, even as you read, making its way through the long, strong digestive system of NSA’s domestic surveillance apparatus. Bon appetit.

Of course, President Obama sees it differently, and just last Friday he weighed in with a perspective a lot of Americans might find confusing:

Obama was concluding remarks about his Affordable Health Care Act during an address in Northern California Friday morning when he fielded a single question about the NSA and the recently disclosed domestic spying programs.

“I think it’s important to recognize that you can’t have 100 per cent security and also then have 100 per cent privacy and zero inconvenience,” the president told the crowd while delivering several minutes of unscripted remarks about the NSA.

Inconvenience?

Here’s another quote from an American statesman who didn’t seem as confused as our current leaders about the relationship between security and freedom, and who appears to understand that 100 percent “security” cannot be a final goal:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?

There are Americans, I know, who believe quoting Patrick Henry may be even more anachronistic than citing the U.S. Constitution, and to these modern thinkers, who believe the world has changed and “tyranny” is just a hyperbolic knee-jerk response from the millions of working-class Americans lacking the sophisticated, pragmatic insights garnered from a really first-rate education, I can only say: get real.

Let’s cut to the chase. The secret court order allowing NSA to access the telephone and internet data of millions of American citizens, conceived by the Bush administration and nurtured into Frankenstein proportions under Obama, has provoked bipartisan outrage. Democrats, Republicans, and Libertarians alike are (almost) up in arms.

After Fast and Furious, Benghazi, the revelation that the IRS has targeted conservative groups, government search warrants requisitioning phone records belonging to AP reporters and editors, and the ambush mounted by DOJ for Fox News Bureau Chief James Rosen — the target, along with his parents (co-conspirators, according to the FBI), of charges enlivened by the same archaic Conspiracy to Commit Espionage Act that sent the Rosenbergs to their deaths in 1953 — Americans appear to be looking up from their smart phones and taking note of what appears to be an extra-legal campaign launched by the executive and judicial branches of the U.S. government to undermine their civil liberties, invade the privacy of untold numbers of innocent, law-abiding citizens, and sabotage the First, Second, and Fourth Amendments to the U.S. Constitution.

Yup.

Just when you think it can’t get worse — it does. Moral superiority down the tube. Rest of the world laughing its you-know-what off.

Even administration supporters are speechless — attorneys at the ACLU are falling over themselves.

It is beyond Orwellian and provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies. . .

Former Vice President Al Gore:

It is just me, or is secret blanket surveillance absolutely outrageous?

No matter. Team Obama repeats a pattern that we’ve seen succeed over and over again — deny, deny, deny. Nobody knows nothin’.

None of the higher-ups at DOJ, DHS, State, or ATF knew agents on the southwest border were sending untraceable combat-ready assault rifles across the U.S.-Mexico border. Former U.N. Ambassador Susan Rice (now National Security Advisor) tells the world the attack that killed U.S. Ambassador Christopher Stephens in Benghazi was triggered by an anti-Muslim home movie that surfaced on YouTube.

The Commissioner of the IRS says low-level idiots in Cincinnati engineered the targeting of conservative groups applying for tax-exempt status. The White House says AP reporters and editors are fronting for “criminal” leakers, and James Rosen, well, let’s just say that a revival of the House Un-American Activities Committee may not be far down the road.

Stop it

Stop all this nonsense about NSA only collecting metadata on millions of phone calls, the “front of the envelope,” as White House officials call it.

Question: How does a massive domestic surveillance campaign operate effectively if the only information garnered consists of ‘patterns’ that omit the names of originating callers and recipients and the contents of those calls?

Ok, you’ve got the numbers, locations, length of calls — so what?

If you don’t know who those numbers belong to, if you don’t know who the recipients of the calls are, if you don’t monitor the contents of the calls, how do you know if terrorist plots are afoot?

You don’t.

Here’s how NSA surveillance of domestic communications works, per information supplied by eyewitnesses to the agency’s data collection processes and software.

Contents of calls, millions of calls, are fed into sophisticated monitoring filters, capable of gathering and sifting through unprecedented amounts of data. NSA technology is programmed to respond to key words and phrases. If NSA is operating legitimately, i.e., to “catch terrorists,” those words and phrases might include “jihad,” “Syria,” “al Qaeda,” “Jabhat al-Nusra,” “Assad,” — you get the picture.

Conversations, or content, containing key words and phrases make it into a secondary bin, along with relevant telephone numbers, and names, into the portfolio of some NSA analyst.

Here’s the problem with this approach: The dilemma of “home-grown terrorists” aside, the authority to employ massive domestic surveillance this administration has accorded NSA, and by a “secondary court order,” the FBI — an agency controlled by Eric Holder’s Department of Justice — is a classic example of using the proverbial cannon to kill a mosquito.

Critics say that by extending the powers of the FBI, an agency limited by law to domestic intelligence-gathering and an organization thoroughly in thrall to Holder’s Department of Justice, the administration has staged a political coup d’etat: It has constructed an intelligence apparatus capable of monitoring any communication between U.S. citizens it may deem important to its political aims; it has diverted authority once possessed by the CIA (which now appears responsible, not for foreign intelligence gathering, but for paramilitary operations) to an agency eager to extend its jurisdiction and expand its budget via political largess; and it has secured, under cover of the Secrecy Act, an avenue to seek out its political “enemies” and critics in a manner off-limits to scrutiny by Congress and the American people.

Who’s to know when and if NSA decides key words and phrases also include terms like “Obama,” “Constitution,” “First Amendment’” “Second Amendment” “government corruption,” or “Tea Party.”

This is bad.

Very, very bad.

I know there are administration supporters who argue that limited intrusion into public communications may be justified if such actions preclude terrorist attacks on U.S. soil.

And I agree. If there is evidence that targeted individuals are most probably engaged in terrorist activities.

NSA Can Target Anyone

But here’s the dilemma: The Secrecy Act absolves NSA from revealing the operational details that Congress and/or the people need to ascertain whether NSA is indeed targeting our enemies or the political “enemies” of the administration, folks like James Rosen, maybe me, maybe you.

Imagine: You have a court order and the technology to tap into the conversations of every American citizen and cover, supplied by the Secrecy Act, to conceal the fact you are not only collecting metadata but transcripts of any conversations you may deem important for any reason at all.

Think what J. Edgar Hoover, with his handwritten, “secret” file cards, might have done with a system like this.

We’re talking about “warrentless wiretaps” — something any straight-up law enforcement agent will tell you is extremely difficult to procure — striking as the notion of a secret wiretap does, at the very core of our constitutional right to privacy. The administration doesn’t understand what all the fuss is about — “less than 100 percent privacy,” a notion logically akin, it seems to me, to “less than 100 percent freedom” when speaking of democracy, or “less than 100 percent equality” when discussing civil rights — appears to make perfect sense.

Tell Me I’m Wrong

Snowden broke the law by handing over information he’d sworn not to disclose when he took the job at NSA. True. But there’s another legal imperative pertinent to situations like this one: the official Whistleblower’s Act, which requires government employees, even contractors (who, incidentally, account for 90 percent of NSA analysts) to notify Congress or other relevant authorities when these employees have witnessed a legal or ethical violation of power.

And Snowden, the NSA “leaker” himself, has had a pretty good go at setting the record straight.

Edward Snowden has told the world what he saw from his desk — he saw NSA’s data collection software at work and he listened to his superiors listening to the conversations of “a lot of very important people.”

So much for NSA’s claim that “no one is listening to the private conversations of U.S. citizens.” Speaking for NSA, Michael Hayden, former NSA Director, says the information gathering system collects only metadata, the “haystack,” so to speak, and that data is set aside until analysts dive into it with the aim of separating data that points to ‘terrorist threats’ from the communications of ordinary U.S. citizens.

That’s not what Edward Snowden’s seen.

According to Snowden, within the NSA, “any analyst, at any time, can target anyone.”

Snowden adds, “Their surveillance strategy is boundless, it has no limits, and he has eavesdropped on a number of highly-placed officials. . .NSA believes it can wiretap anyone, you, your accountant, the President.”

The former NSA contractor says, “By law, NSA intelligence-gathering activities are limited to foreign communications, although it continues massive warrantless surveillance. And this enormous apparatus is being built in secret.”

A former undercover agent with years of experience in constructing 100 page affidavits to obtain wiretap authority tells me it is impossible to capture IP data without also capturing content — sure, he says, NSA could store it, but it’s there, all the same, for anyone to access at anytime. The goal may be to go after terrorists, but it might also be to learn who one’s political enemies are, so when the time comes, you can move against those who might oppose you, your views, or your political agenda.

“Think about it this way,” my source tells me. “A burglar breaks into your house for the purpose of ascertaining whether you have a safe in the wall. He finds it, but never opens it. Instead, he goes to the house next door, and repeats the process, finding another safe, and not opening it, and so on and so on. He never opens the safe. How likely is that?”

NSA and the administration tell us they’re not opening the safe. They’re in, they have access to the contents, but, believe us, they promise, we aren’t looking.

Sure

If you buy this, you may still believe Susan Rice’s story about the anti-Muslim YouTube flick triggering what from all accounts seemed to be a carefully planned and organized attack on the U.S. Embassy in Benghazi by 80+ bearded and heavily armed men who moved with the precision and ruthlessness of professional assassins.

It is one of the great ironies in this situation, it seems, that while NSA strives to dissect every communication issuing from the U.S., emails, letters, and cables sent directly from U.S. personnel in Benghazi alerting U.S. State Department officials that terrorist attacks were a possibility were ignored, mislaid, or, as Hillary Clinton has testified, kept “off the Secretary’s desk.”

Stephens’s family or friends might have had better luck at transmitting the message if they’d discussed it via an intercepted domestic call to a Tea Party member.

The idea that massive domestic surveillance — and the transfer of authority regarding this mission from the CIA to the FBI — is an effective counter-terrorism tool is unfounded. The FBI has already “lost” 1500 Saudi nationals with expired visas who may still be in the country. Maybe they’re enrolled in flight school or working at a fertilizer plant.

We have 11-20 million unregistered immigrants safeguarded from interrogation by new immigration policies — including, I’m told, a number of Romanians (yes, you heard me right) with suspect motives, who count on their resemblance to young Mexican “Dream Act” kids to escape scrutiny once they slip across the southwest border and into the United States.

Giving Counter-Terrorism to Holder and the FBI

Politically, spying on law-abiding Americans makes more sense than focusing on foreign “sources” acquired overseas, into the internal affairs of countries like Saudi Arabia, Pakistan, Turkey, Afghanistan and our Gulf “allies,” the same people backing, in many cases, al-Qaeda-linked brigades fighting Assad in Syria. (I’ll bet none of them are using Verizon.)

Better to harass 300+ million U.S. citizens (I’m told that the cost of one wiretap can range from 20k up) than invite the protests of foreign governments when we “turn” one of their citizens or target a terrorist suspect outside the U.S. Domestic spying is certainly preferable, politically, to waterboarding. Who doesn’t understand the political cost of hands-on interrogation of terrorist suspects, in the U.S. (GTMO, for example) or overseas?

And, of course, after bin Laden, what else is there? President Obama says we’ve “decimated” al Qaeda.

Wrong.

Jihadism is alive and well. But they won’t be phoning home to tell us they’re coming. And this is where NSA’s domestic surveillance strategy adds insult to injury, because as any counter-terrorism actor will tell you, the key to ferreting out terrorist threats is human intelligence (HUMINT), the acquisition of ‘sources,’ who are detained and persuaded (think “Zero Dark Thirty”) to give up the next highest link in the chain or other vital information.

HUMINT is the single most important asset in the fight against terrorism at home and abroad—but this is the purview, not of the DOJ-friendly FBI, an administration tool, say critics, but the CIA, an agency which, according to intel insiders who have approached the agency with actionable information and sources, has apparently been told to stand-down and let somebody else take the lead.

The CIA isn’t looking for key phrases; their job is to go after key players, when they’re allowed to do it.

Discrediting Snowden

Edward Snowden, our NSA whistleblower, has told The Guardian and the international media he’s ready for the campaign to come, the efforts to discredit him personally and professionally. He has chosen to speak from Hong Kong because, says Snowden, he believes that government will not be as easily persuaded as some to give him up.

Meanwhile, Americans can rest easy in the knowledge that our most private conversations and unguarded opinions are sliding like grain into the silos at NSA, an incentive, perhaps, to speak up and out to our secret listeners with their secret court orders and easy explanations.

There have always been spies among us, but intimidation has never been something to which Americans — the press or the public — have responded well. Perhaps you have some key phrases of your own you might wish to share via phone or internet with our government and our elected representatives. Go ahead. Forget my warning about staying under the radar. Let’s give NSA a shoutout. Include your name, your number, your email address — why not? Pick up your phone, preface your conversation to mom or the wife by shouting some attention-getting words like “tyranny” or “revolution,” into the receiver, and tell your government what you really think.

I’d join you, but somehow I think they’ve already got my number.

 

Author

Kathleen Millar
Kathleen Millar

Kathleen Millar began her career in public affairs working for Lyn Nofziger, White House Communications Director. She has gone on to write about a wide range of enforcement and security issues for DHS, for the US Department of the Treasury (Customs & Border Patrol), for Senator Olympia Snowe (R-ME), then a Member of the Senate Intelligence Committee, and for top law enforcement officials in the United States and abroad.

A Founding Member of the Department of Homeland Security, Millar was also the deputy spokesperson-senior writer for the United Nations Office on Drugs and Crime in Vienna, Austria. She has authored numerous speeches, articles and opeds under her own and client bylines, and her work, focusing on trafficking, terrorism, border and national security, has appeared in both national and international outlets, including The Washington Post, The Washington Times, The International Herald Tribune, The Financial Times, and Vital Speeches of the Day.

Kathleen Millar holds an MA from Georgetown University and was the recipient of a United Nations Fellowship, International Affairs, Oxford. She is a member of the Georgetown University Alumni Association, Women in International Security (GU), the Women’s Foreign Policy Group, and the American News Women’s Club in Washington, DC. Kathleen Millar is currently teaching and writing about efforts to combat transnational organized crime.

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