Yeah, and ten years ago, this was my cell phone in high school:
At the risk of sounding flippant, so what? Sure technology changes fast, but this warrant-less domestic mass surveillance has been going on at least since 9/11 and didn't end in 2003 like you imply. The legal basis of the surveillance programs has a long spaghetti history of being justified in one way, then another and another, all while being twisted, obscured, confused and compartmentalized. I'm sure the NSA and their executive branch partners have been working very hard to conceal and destroy evidence, or otherwise obstruct courts from threatening their programs, but I fail to see how that means we should just stop paying attention or give up. Their army of lawyers may be masters at playing this game, but the only way defenders of civil liberties can hope to fight back is to continue poking at the little holes in their armor (like this case) and pulling on the little threads revealed by whistle-blowers. If you have a better suggestion, I'm all ears.
You say you've read some books about the NSA, and perhaps you can give me some valuable recommendations. I've read the Jewel v. NSA summary of evidence submitted by the plaintiffs to the court in 2012 and I thought it was an excellent compilation of what has been going on behind the scenes. I would urge anyone interested in this topic to take an hour and read it in its entirety (It's only fifty-some pages, although it is dense with references and footnotes). I have summarized their summary, in an effort to distill what I find is the most compelling evidence for legal action against the NSA and their cohorts.
The summary begins with an outline of the programs in question, then details various threads of evidence as it has been slowly leaked to the public:
Shortly after the September 11, 2001 terrorist attacks, President George W. Bush authorized the National Security Agency to conduct a variety of surveillance activities, including the warrantless surveillance of telephone and Internet communications of persons within the United States. The OIG PSP Report termed these surveillance activities the “President’s Surveillance Program” (hereafter, “the Program”). The Program is broader than the narrow subset of surveillance activities that, in 2005, the Bush Administration decided to label the “Terrorist Surveillance Program” (hereafter “TSP”).
A secret presidential order (the “Program Order”), signed on October 4, 2001, expanded the authority of the NSA “to conduct electronic surveillance within the United States without an order from the [Foreign Intelligence Surveillance Court (FISC)].” The Program began on October 6, 2001, prior to any comprehensive legal review by the Department of Justice. The Program Order permitted the NSA to carry out a variety of new intelligence activities within the United States.
The entire Program remained secret until newspaper reports – a series of December 2005 New York Times articles, a December 2005 Los Angeles Times article, and a May 2006 USA Today article – revealed two discrete aspects of the Program: the warrantless surveillance of Internet and telephone communications and the government’s acquisition of domestic call-detail records from major telecommunications carriers. While the precise scope of the surveillance activities and the legal arguments used to support the Program have fluctuated over time, to date, the Program remains in operation, largely unchanged from its original form. [Emphasis mine]
To categorically assume that all evidence has been destroyed, belies the reality of the situation as I see it, where some of the evidence of illegal behavior has been publicly exposed, or kept classified.
The government conducts communications surveillance under the Program in several stages, starting with acquisition of the communications passing through major telecommunications switches. Government officials confirmed to the New York Times that the NSA obtained “backdoor access to streams of domestic and international communications” via arrangements with “some of the nation’s largest telecommunications companies.” Those agreements provided the NSA “access to major telecommunications switches on American soil.”
Plaintiffs’ eyewitness evidence confirms that Program surveillance begins with wholesale acquisition of communications – both international and domestic – from domestic telecommunications switches. In January 2006, a former AT&T employee named Mark Klein provided detailed eyewitness testimony and documentary evidence showing how the government, in partnership with AT&T, acquires access to the streams of international and domestic communications. (As part of the Program, “[telecommunications] companies have granted the NSA access to their all-important switches, the hubs through which colossal volumes of voice calls and data transmissions move every second…. [T]he NSA appears to be vacuuming up all data, generally without a particular phone line, name, or e-mail address as a target.”)
Klein’s job at AT&T was “to oversee the WorldNet Internet room” at AT&T’s Folsom Street facility in San Francisco. Communications carried by AT&T’s WorldNet Internet service pass through that room to be directed to or from customers of AT&T and other service providers. The WorldNet Internet Room is designed to process vast amounts of electronic communications traffic “peered” by AT&T between its Common Backbone (“CBB”) Internet network and other carriers’ networks. The Folsom Street Facility also handles millions of telephone communications.
The Klein evidence describes how the government initially intercepts Internet communications, which are carried as light signals on fiber-optic cables. To divert the stream of communications to the government, AT&T connected the fiber-optic cables entering its WorldNet Internet room to a “splitter cabinet.”
The “splitter cabinet” splits the light signals from the WorldNet Internet service in two, making two identical copies of the data carried on the light signal. The splitter cabinet directs one copy of the light signal through fiber optic cables into a secret room built on AT&T premises, but controlled by the NSA, while allowing the other copy to travel its normal course to its intended destination. The split cables carry both domestic and international communications of AT&T customers, as well as communications from users of other non-AT&T networks that pass through the Folsom Street Facility. The use of the splitter cabinet to create an identical copy results in the wholesale acquisition by the government of AT&T customers’ Internet communications. . . . In particular, [a plaintiff expert witness] Marcus explains that the location of the fiber split in AT&T’s network was not designed to capture only international traffic, but to intercept purely domestic communications as well.
Evidence indicates (and supported by expert witness testimony) that similar "splitter cabinets" were employed at other switching locations, including Seattle, San Jose, Los Angeles and San Diego, giving the government unrestricted access to both domestic and international communications. The testimony concerning these points of access are corroborated by oblique statements of involved officials, such as Gen. Michael Hayden. Also contained in the motion is evidence concerning what the Government did with those communications after it had collected them:
Once the communications are acquired, the Program involves “comb[ing] through large volumes of phone and internet traffic” in a “large data-mining operation.” As former Homeland Security Secretary Michael B. Chertoff confirmed in a January 2006 interview, the Program involves “‘data-mining’ – collecting vast amounts of international communications data, running it through computers to spot key words and honing in on potential terrorists.”
There is a description of the “‘mechanical surveillance’ that is taking place before U.S. citizens and residents are ‘subject to human surveillance.’” Collected communications were directed to a secure room operated by the NSA:
The AT&T documents presented by Mr. Klein show that a Narus STA 6400 was installed in NSA’s secure room inside of AT&T’s Folsom Street facility. As plaintiffs’ expert J. Scott Marcus explains, the Narus machine is a “semantic traffic analyzer” – a device “designed to capture data directly from a network, apply a structured series of tests against the data, and respond appropriately.” The Narus machine has the capability “to process huge volumes of data, including user content, in real time.” Thus, the configuration deployed in the secure room is “well suited to the capture and analysis of large volumes of data for surveillance purposes.”
Those familiar with domestic surveillance might be aware of the term "minimization" which refers to the “procedures for reviewing, handling, and, as appropriate, destroying, information about U.S. persons, depending on whether or not the information constitutes foreign intelligence information.” The document also covers evidence relating the NSA's minimization policies. According to testimony to the Senate Committee on the Judiciary, statements made by McConnell, the DNI, indicate that "immediately after acquisition 'there is no human that is aware of it. So you wouldn't know that [communications without foreign intelligence value were there] until you went into the database.'"
McConnell further admitted that the communications are acquired and placed in a database before minimization. In response to a question on the number of Americans whose communications had been intercepted, he testified [in a house committee]:
MR. MCCONNELL: I am not even sure we keep information in that form. It would probably take us some time to get the answer. The reason is, you’re collecting information. It is in a file. It will roll off in a period of time. You may not even know it is in the database. That is one of the reason we are so careful about who has access to that database. . . .
REP. BERMAN: . . . How do you minimize without knowing?
MR. MCCONNELL: If you look at it, then you know.
REP. BERMAN: So all you do is minimize the ones you happen to look at.
MR. MCCONNELL: Right. If there is something in there that — it doesn’t come up for some reason, you just wouldn’t know. …
Here in another similar exhange from a Senate committe:
FEINSTEIN: . . . Do the minimization procedures prevent NSA from retaining communications that do not contain foreign intelligence information?
MCCONNELL: If recognized, the minimization would require them to expunge it from the database. . . .
FEINSTEIN: So what is the minimization process? And how does it function? And what happens with that collection?
MCCONNELL: The – first of all, you may not even realize it’s in the database, because you do lots of collection, you have to have a reason to look.
The inference from former DNI McConnell’s statement is that communications between U.S. persons and records of such communications are in the database – and remain in the database – available for human intelligence analysts to review. Because there are “billions of things going on” in the database, McConnell explained, information without foreign intelligence value will remain stored for some period of time if it “hasn’t been examined." Indeed, former Attorney General Alberto Gonzales suggested in sworn testimony before Congress that, once collected, the information is kept indefinitely, even if the subject of the surveillance is an ordinary American: “In terms of what is actually done with that information, . . . information is collected, information is retained and information is disseminated . . . .”
The summary of the NSA's minimization procedures seem fairly damning to me as a layman:
Under the Program, on the occasions where the government follows procedures established to protect Americans’ privacy (obtaining a warrant or conducting minimization by purging the record from the database), it does so only after both acquisition and analyst review. If a government analyst reviewed the communications and determined that “it was a U.S. person inside the United States . . . that would stimulate the system to get a warrant. And that is how the process would work,” [said McConnell]. In sum, the evidence shows that the NSA seeks a warrant only after the communication is (1) initially acquired and analyzed by computers according to algorithms designed by humans; (2) placed in a government database; and (3) reviewed by an analyst.
There are also descriptions by two whistle blowers, David Faulk and Adrienne Kinne, where minimization techniques were simply not used, even in cases where it was apparent they should be, when the NSA was collecting communications by aid organizations, or sharing salacious communications among analysts.
Beyond the evidence of IP communication surveillance, there are also details about the phone metadata surveillance, and the difficult legal justification for it. A phone company, Qwest, made some interesting statements about it:
Qwest has unequivocally confirmed requests by the government for “private telephone records of Qwest customers,” which Qwest refused after learning that it would not be provided with any lawful authority permitting such access." According to Joseph Nacchio, the former “Chairman and CEO of Qwest [who] was serving pursuant to the President’s appointment as the Chairman of the National Security Telecommunications Advisory Committee,” Qwest’s refusal to comply was based on a “disinclination on the part of the authorities to use any legal process” in support of the request.
Furthermore, there is evidence that the NSA uses the phone metadata collection "to analyze the communications patterns of Americans in order to locate and target suspects for further surveillance and investigation." It's worth noting that the military uses similar metadata analysis of foreign calls to target drone strikes.
The database of call-detail records provides NSA with a window into the “existence, timing, and frequency of communications between persons” within the United States. Indeed, for the NSA, “a person’s associations and the persistence of that association with other persons” is often “of greater relevance to a determination” that a person should be a target of investigative interest than “the actual words used in a series of communications.”
Additionally, there is some interesting analysis of the Program's evolution, because, like you say, this has been going on for quite a while:
The Program reflects a goal of the NSA presented to the incoming Bush administration in December 2000. According to the NSA, “[t]he volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive mission, NSA must ‘live on the network.’” . . .
But FISA stood as an obstacle to accomplishing this goal. In 2000, the NSA acknowledged that the “applicable legal standards for the collection, retention, or dissemination of information concerning U.S. persons reflect a careful balancing between the needs of the government for such intelligence and the protection of the rights of U.S. persons,” and FISA “codified this balancing.” However, shortly after the attacks of September 11, “FISA ceased to be an operative concern” for the NSA. Consequently, President Bush authorized the NSA to “conduct electronic surveillance within the United States without an order from the FISC[.]”
DNI McConnell even gave testimony in 2007, saying “[T]he original program that the President was operating” was unlawful in “the framework of FISA,” while reserving judgment on the Article II argument, and Gen. Hayden said it “is a more . . .‘aggressive’ program than would be traditionally available under FISA.”
Even in the absence of judicial authorization, neither the President nor Attorney General approved the specific interceptions; rather, the decision to listen or read particular communications was made by intelligence analysts. . . The only review process is authorization by an NSA “shift supervisor” before directly reviewing a particular individuals’ communication
Between 2001 and 2004 the Program Orders were simply certified as to their "form and legality" by the Attorney General which gave the program a sense of legitimacy and encouraged private partners to cooperate. There are some curious details about AG Ashcroft's awareness of the full extent of the Program, culminating in a confrontation in Ashcroft's hospital room in March of 2004, which precipitated a shift in how the administration justified the Program. It's difficult to read these accounts and not get the sense that something fundamentally wrong was occurring.
I'm curious what your response is to all of this, Kleinbl00; Obviously the Protect America Act of 2007 and the FISA Amendments Act of 2008 brought some of the surveillance back under the FISC, but officials in the intelligence community still seem to maintain that the AUMF and Article II of the constitution allows the President to authorize mass domestic surveillance without warrants or judicial oversight. I don't think you could argue with a straight face that Obama has suddenly reversed course here. Considering the degree to which the legislative and executive branches are in the pocket of the intelligence community, not to mention both major political parties, the judiciary looks like the best opening to attack (legally speaking, of course) the surveillance apparatus.
For all the flak Snowden receives for "not being successful enough" in his leaks against the NSA, they have given some ammunition to plaintiffs and has undermined the state secrets privilege which they've relied on in the past. There will be no grand reveal of all the skeletons in the closet here, all we can see are just a handful of puzzle pieces. Just because the NSA is busy hiding and throwing away some pieces to the puzzle, doesn't mean we shouldn't try to put together the pieces we already have. Sorry for writing a book here, but I just wasn't really impressed with your response, to be honest.