Tag Archives: bush administration officials

| Exposed: NSA collecting phone records of millions of Verizon customers daily!

Posted on by
5

NSA collecting phone records of millions of Verizon customers daily ~ , The Guardian.

Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama. 

• Read the Verizon court order in full here

 
Phone records data
Under the terms of the order, the numbers of both parties on a call are handed over, as is location data and the time and duration of all calls. Photograph: Matt Rourke/AP

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government’s domestic spying powers.

Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

The Guardian approached the National Security Agency, the White House and the Department of Justice for comment in advance of publication on Wednesday. All declined. The agencies were also offered the opportunity to raise specific security concerns regarding the publication of the court order.

The court order expressly bars Verizon from disclosing to the public either the existence of the FBI’s request for its customers’ records, or the court order itself.

“We decline comment,” said Ed McFadden, a Washington-based Verizon spokesman.

The order, signed by Judge Roger Vinson, compels Verizon to produce to the NSA electronic copies of “all call detail records or ‘telephony metadata’ created by Verizon for communications between the United States and abroad” or “wholly within the United States, including local telephone calls”.

The order directs Verizon to “continue production on an ongoing daily basis thereafter for the duration of this order”. It specifies that the records to be produced include “session identifying information”, such as “originating and terminating number”, the duration of each call, telephone calling card numbers, trunk identifiers, International Mobile Subscriber Identity (IMSI) number, and “comprehensive communication routing information”.

The information is classed as “metadata”, or transactional information, rather than communications, and so does not require individual warrants to access. The document also specifies that such “metadata” is not limited to the aforementioned items. A 2005 court ruling judged that cell site location data – the nearest cell tower a phone was connected to – was also transactional data, and so could potentially fall under the scope of the order.

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.

It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.

The court order appears to explain the numerous cryptic public warnings by two US senators, Ron Wyden and Mark Udall, about the scope of the Obama administration’s surveillance activities.

For roughly two years, the two Democrats have been stridently advising the public that the US government is relying on “secret legal interpretations” to claim surveillance powers so broad that the American public would be “stunned” to learn of the kind of domestic spying being conducted.

Because those activities are classified, the senators, both members of the Senate intelligence committee, have been prevented from specifying which domestic surveillance programs they find so alarming. But the information they have been able to disclose in their public warnings perfectly tracks both the specific law cited by the April 25 court order as well as the vast scope of record-gathering it authorized.

Julian Sanchez, a surveillance expert with the Cato Institute, explained: “We’ve certainly seen the government increasingly strain the bounds of ‘relevance’ to collect large numbers of records at once — everyone at one or two degrees of separation from a target — but vacuuming all metadata up indiscriminately would be an extraordinary repudiation of any pretence of constraint or particularized suspicion.” The April order requested by the FBI and NSA does precisely that.

The law on which the order explicitly relies is the so-called “business records” provision of the Patriot Act, 50 USC section 1861. That is the provision which Wyden and Udall have repeatedly cited when warning the public of what they believe is the Obama administration’s extreme interpretation of the law to engage in excessive domestic surveillance.

In a letter to attorney general Eric Holder last year, they argued that “there is now a significant gap between what most Americansthink the law allows and what the government secretly claims the law allows.”

“We believe,” they wrote, “that most Americans would be stunned to learn the details of how these secret court opinions have interpreted” the “business records” provision of the Patriot Act.

Privacy advocates have long warned that allowing the government to collect and store unlimited “metadata” is a highly invasive form of surveillance of citizens’ communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.

Such metadata is what the US government has long attempted to obtain in order to discover an individual’s network of associations and communication patterns. The request for the bulk collection of all Verizon domestic telephone records indicates that the agency is continuing some version of the data-mining program begun by the Bush administration in the immediate aftermath of the 9/11 attack.

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had “been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth” and was “using the data to analyze calling patterns in an effort to detect terrorist activity.” Until now, there has been no indication that the Obama administration implemented a similar program.

These recent events reflect how profoundly the NSA’s mission has transformed from an agency exclusively devoted to foreign intelligence gathering, into one that focuses increasingly on domestic communications. A 30-year employee of the NSA, William Binney, resigned from the agency shortly after 9/11 in protest at the agency’s focus on domestic activities.

In the mid-1970s, Congress, for the first time, investigated the surveillance activities of the US government. Back then, the mandate of the NSA was that it would never direct its surveillance apparatus domestically.

At the conclusion of that investigation, Frank Church, the Democratic senator from Idaho who chaired the investigative committee, warned: “The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter.”

Additional reporting by Ewen MacAskill and Spencer Ackerman

Related articles

sheepoA

| Roundtable on Targeted Killing: Lawfare and Targeted Killing Revisited ~ A Response!

Posted on by
1

 
Listen to this page using ReadSpeaker
[An envisioning of lawfare. Image from Harper’s.]
[An envisioning of lawfare. Image from Harper’s.]

[This is the sixth part of a six-part series associated with a Jadaliyya roundtable discussing targeted killings . Participants include Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, Leonard Small, and Lisa Hajjar. Click here for the introduction to the roundtable.] 

 

The speech that Attorney General Eric Holder delivered on 5 March 2012 in which he outlined the Obama administration’s position on the legality of the targeted killing program exemplifies what I have described as “state lawfare.” One aspect of state lawfare, I argue, is the effort by officials “to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable.” Holder evinces a heightened degree of self-consciousness about what he is doing in this regard when he states: “Some have called such operations ‘assassinations.’  They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings…[T]he U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.”

Lennie Small’s contribution to this roundtable begins with this very point. The relatively recent articulation of a distinction between “assassination” and “targeted killing,” Small argues, is legal and rhetorical rather than tactical, since both refer to “the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle.” Like state lawfare-esque assertions by Bush administration officials and lawyers that interrogation tactics such as waterboarding are not torture (i.e., criminal offenses) if done for the worthy purpose of “keeping Americans safe,” Holder is now on the record arguing that extra-judicial executions are not assassinations (i.e., unlawful) if employed “to defend the United States through the appropriate and lawful use of lethal force.”

The concepts of “appropriate” and “lawful” are not nearly as seamless or complimentary as Holder would suggest. In fact, they raise two entirely different sets of issues, coming together only (and retrospectively) in the death-by-surprise of suspected enemies who are killed at times when they are not actively engaged in armed combat or any other form of active violence or aggression—that is, at times when they do not pose an imminent threat. Of course, it can be argued that “enemies” are dangerous even when they are off duty, lying in bed, drinking in a café, driving home, and so on. Carl Schmitt reminds us that in war, the “enemy” is he who poses an existential threat to the “friend.” Two years ago, I would not have pegged Holder—or Obama—as a Schmittian. But I digress.

What, according to Holder (and the administration he serves and for which he speaks), constitutes “appropriate” use of lethal force? This includes “considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” Such considerations presume the existence of accurate intelligence to trigger the authorization for lethal force. Yet Holder says nothing about the inaccurate intelligence that has triggered fatal strikes against innocents. Indeed, there are no mistakes referenced in his speech.

As for the “lawful” nature of US targeted killings, Holder cites the canonic laws of war—the Geneva Conventions—to assert that “any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.” Those four principles are “necessity” (the requirement that the target has a definite military value); “distinction” (the imperative to distinguish between those who legally can be targeted intentionally—“combatants, civilians directly participating in hostilities, and military objectives”—and those whose deaths are accidental or, in the discourse of war, collateral damage); “proportionality” (a calculated but vague and subjective requirement that “the anticipated collateral damage must not be excessive in relation to the anticipated military advantage”); and “humanity” (described by Holder as the requirement to “use weapons that will not inflict unnecessary suffering”). The subject of “unnecessary suffering” goes unnamed and unmourned in the speech.

There is a more positive way to interpret Holder’s speech, but doing so requires a more hopeful disposition than I possess. The very fact that he publicly acknowledged a policy that has been largely shrouded in secrecy and buttressed by denials is a hopeful sign, if for no other reason than the possibility of signaling what Richard Falk suggests: that the time is ripening for a national debate. Yet my dear, optimistic friend Falk—who resiliently believes that people armed with good information can be inspired to do good things, and who accurately chides me for “refraining from advocacy” in the tenor I adopt in criticizing the targeted killing policy—offers a metanarrative within which one can read Holder’s speech and the Obama administration’s policy: “[I]n the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally.” Holder’s speech is an articulation of the logic of American power and geopolitical realities; there is no referent other than the US government, its laws, and American public opinion.

I thought about that “imperial” or “hegemonic” logic as I read and reread the text of Holder’s speech, wondering who he was trying to persuade. Clearly, he had several audiences in mind, but all of them American. To the hawks (chicken and other), he offered a reassuring acknowledgment that “[w]e are a nation at war.” He offered bland reassurances to civil libertarians, too: “But just as surely as we are a nation at war, we also are a nation of laws and values.” To the military commission enthusiasts in Congress who have worked to circumscribe the Obama administration’s executive discretion on where and how to prosecute suspects, he chastised that “far too many choose to ignore [that] the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.” To the Islamophobes, he nourished their desire for harsh treatment of (Islamic) enemies foreign and domestic, rationalizing and owning up to current policies of surveillance racial profiling at home and targeted killing abroad by stating that “there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.”

What about those Americans, like Nathan Freed Wessler and Pardiss Kebriaei (and their colleagues at the ACLU and CCR), who are advocates for the international rule of international law? Falk has suggested describing what they and their like-minded colleagues do as constructive lawfare, as distinguished from state lawfare. Personally, I prefer to appropriate and monopolize the term “lawfare” (without the qualifier “constructive”), imbuing it with meaning to refer to—indeed, to colonize the concept in order to make positive reference to— “litigation to challenge military and security policies and practices; and efforts to sue or prosecute state agents, government-funded contractors, and corporations who are alleged to have engaged in or abetted serious violations of law in the conduct of war.” 

Wessler and Kebriaei are actual, literal, invested advocates for the rule of law. As they explain in their contributions to this roundtable, they have litigated cases and issues connected with the targeted killing policy. They are humble, focused, attentive to precedent and hopeful about the principle of judicial review. But make no mistake, the battle for the future of law and war, national security and human rights will be waged—at least in part—by lawyers (like them) in courts, here and abroad. Lawyers, I have found, are not the best assessors of their own contributions to larger struggles.

Schooled in the adversarial model, lawyers tend to “think like lawyers” in terms of “wins” and “losses” as determined by court rulings. But—and here is why I love “lawfare” as I interpret it (Falk would characterize what I love as “constructive lawfare”)—the value of litigation to protect or expand deep and hard-fought principles of international/global value (e.g., the right not to be tortured, the right to life and due process) cannot be assessed definitively by the immediate outcomes of cases. The brand of lawfare that Wessler and Kebriaei represent will be important in the future, perhaps even more than at present, as a record of resistance to inhumanity and dehumanization. Like the long struggles against slavery and de jure racism, those who fight these fights today will be remembered tomorrow for being on the right side of history. And sometimes, when you fight you win.

 

Jadaliyya Roundtable on Targeted Killings:

 

Part I: Jadaliyya Roundtable on Targeted Killing: Introduction

Part II: A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing

Part III: Lawyering and Targeted Killing

Part IV: The Need for Judicial Review of US Targeted Killing Practices

Part V: The Secret Bureaucracy of Targeted Killing