The director of national intelligence (DNI) has refused to say whether US spying agencies are using legislation specifically intended to cover only foreigners in order to spy on American citizens.
The unclassified letter [PDF] from Dan Coats to Senator Ron Wyden (D-OR) and released by the legislator, comes in response to a simple question he has repeatedly asked Coats in public and private:
Can the government collect communications it knows are entirely domestic, under Section 702 of the Foreign Intelligence Surveillance Act?
Coats refuses to answer the question, at least publicly. To do so would "cause serious damage to national security," the letter argues. "I provided you a comprehensive classified response to your question on July 24," writes Coats. "This response also discussed, at length, why the information is properly classified and cannot be publicly released."
Wyden is not happy with the response, however, arguing that "it is hard to view director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance."
Wyden then outlines a bizarre series of events where Coats answered his question at a public hearing – stating that to use Section 702 to spy on domestic conversations would be "against the law" – but then subsequently claimed when asked about the response by reporters that he had actually answered a "different question."
And so, in response, Wyden sent the same question to Coats, but this time in writing. He got no response, so he sent a follow-up letter asking the same question again. And that, seemingly, sparked the classified response from Coats that Wyden is unable to share and Coats refuses to discuss publicly.
"I have asked Director Coats repeatedly to answer the question I actually asked," Wyden said in a statement on Wednesday. "But now he claims answering the question would be classified, and do serious damage to national security. The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?"
The letter represents just the latest back-and-forth between Wyden and the intelligence services in which the senator has repeatedly attempted to shine a spotlight on the highly misleading and sometimes outright false statements made by intelligence professionals in public.
As a member of the Senate's intelligence committee, Wyden has access to classified documents and briefings, but he is unable to talk about or quote from them. And so, he has repeatedly asked searching questions to security officials in public sessions as a way of highlighting the worst cases of misinformation.
Section 702 is currently in the spotlight because of widespread abuse of the law by the intelligence services to spy on US citizens and create a vast database on US citizens that the FBI is granted full access to.
The law needs to be renewed before the end of the year and so some in Congress and industry are pushing to have it revised in order to remove the phony justifications used by the NSA and other agencies to spy on US citizens.
On top of the fact that the intelligence services have clearly found a way to justify using a law that specifically bans the surveillance of US citizens in order to spy on US citizens, the NSA and other agencies are also refusing to disclose how many US citizens are contained in its vast 702 database.
Keep us stupid
The obvious concern is that if US citizens learn that their government has used laws that specifically exclude them from surveillance in order to do exactly that, pressure will build on Congress to change that law before it is renewed.
In response, the NSA recently began its own pushback campaign, including justifying the powers that it claims it doesn't have by implying they have helped fight terrorists. And by reviving the long-defunct Privacy and Civil Liberties Oversight Board (PCLOB) with an NSA-friendly chair.
In case you were wondering how exactly you can use a law to achieve the exact opposite of what it states, here is a rundown:
- You choose to define the term "foreign intelligence information" to include any and all information that may be relevant to the United States.
- You then tap all internet and mobile phone traffic flows within the United States by claiming that, due to the internet's structure, foreign intelligence information flows through US servers.
- You then claim that unless you can be absolutely certain that the information gathered relates to a US citizen, you need to keep it. But you make no effort to find out whether that information does belong to a US citizen.
- You label all the information actually gathered about US citizens as "incidental" or "inadvertent" and so, even though you retain it and put it in a searchable database, you decide not to consider it information that was received through the use of Section 702 – even though you received it through the use of 702.
- You decide that you are allowed to search that database however you wish so long as your search term gives you a "51 per cent confidence" that it will bring up information on a non-US citizen.
- You go to the secretive FISA court and argue that you should be able to search the personal identifiers of US citizens – including phone numbers and email addresses – because not to do so could prevent your ability to stop the next big attack.
- You use a recommendation from the 9/11 Commission asking for greater communication between agencies to grant the FBI access to the 702 database built of "incidental" data of US citizens and allow them to use US citizen identities to search the database.
- When asked how this is legal, you decide that "querying databases containing Section 702 information does not result in any new acquisition of data; it is instead only an examination or re-examination of previously acquired information" – and so all normal constitutional rights do not apply.
See? Simple. Just take what the law says and build several fake assumptions on top of each other, while ignoring all but the last one. ®