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On Friday, James Clapper finally provided Ron Wyden an unclassified response to a question he posed on January 29, admitting that the NSA conducts back door searches. (via Charlie Savage) As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21, 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA. It has taken just 9 months for Clapper to admit that, contrary to months of denials, the NSA (and FBI, which he doesn’t confirm but which the Report makes clear, as well as the CIA) can get the content of Americans’ communications without a warrant. But Clapper’s admission that this fact was declassified in August should disqualify Vice Admiral Mike Rogers from confirmation as CyberComm head (I believe he started serving as DIRNSA head, which doesn’t require confirmation, yesterday). Because it means Rogers refused to answer a question the response to which was already declassified.

Udall: If I might, in looking ahead, I want to turn to the 702 program and ask a policy question about the authorities under Section 702 that’s written into the FISA Amendments Act. The Committee asked your understanding of the legal rationale for NASA [sic] to search through data acquired under Section 702 using US person identifiers without probable cause. You replied the NASA–the NSA’s court approved procedures only permit searches of this lawfully acquired data using US person identifiers for valid foreign intelligence purposes and under the oversight of the Justice Department and the DNI. The statute’s written to anticipate the incidental collection of Americans’ communications in the course of collecting the communications of foreigners reasonably believed to be located overseas. But the focus of that collection is clearly intended to be foreigners’ communications, not Americans. But declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications collected under Section 702 and conduct warrantless searches for the communications of specific Americans. Now, my question is simple. Have any of those searches been conducted?

Rogers: I apologize Sir, I’m not in a position to answer that as the nominee. Udall: You–yes. Rogers: But if you would like me to come back to you in the future if confirmed to be able to specifically address that question I will be glad to do so, Sir. Udall: Let me follow up on that. You may recall that Director Clapper was asked this question in a hearing earlier this year and he didn’t believe that an open forum was the appropriate setting in which to discuss these issues. The problem that I have, Senator Wyden’s had, and others is that we’ve tried in various ways to get an unclassified answer — simple answer, yes or no — to the question. We want to have an answer because it relates — the answer does — to Americans’ privacy. Can you commit to answering the question before the Committee votes on your nomination?

Following through on intentions he announced earlier this week, Senator Rand Paul today offered an amendment to the pending National Defense Authorization Act (NDAA) that would require the president to declassify 28 pages on foreign government links to the 9/11 hijackers. The language is identical to S.1471, the bill Paul introduced on Monday with Senators Ron Wyden and Kirsten Gillibrand. In a story on Paul’s new move, The Hill’s Julian Hattem said the proposed amendment “heightens the profile of the fight and may increase the stakes for the opponents.”

While there are a growing number of vocal champions of the declassification of the 28 pages, those who want the 28 pages kept under wraps have worked quietly and effectively out of public view. As we wrote earlier this year, “It’s likely that among the most powerful of those unseen opponents of 9/11 transparency are two strange bedfellows: The Kingdom of Saudi Arabia—which has fueled the growth of terror, and the U.S. intelligence community—which is charged with thwarting terror.” Paul’s amendment to the must-pass NDAA could force some of those opponents—and, more specifically, their Senate allies—out of the shadows.

However, the language may also offer President Obama an opportunity to continue his administration’s refusal to release the 28 pages, as it says he is not required to declassify sources and methods if that release would “result in imminent lawless action or comprise presently on-going national security operations.”

The Obama administration this week declassified papers, after 45 years of top-secret status, documenting contacts between Jerusalem and Washington over American agreement to the existence of an Israeli nuclear option. The Interagency Security Classification Appeals Panel (ISCAP), which is in charge of approving declassification, had for decades consistently refused to declassify these secrets of the Israeli nuclear program. The documents outline how the American administration worked ahead of the meeting between President Richard Nixon and Prime Minister Golda Meir at the White House in September 1969, as officials came to terms with a three-part Israeli refusal – to sign the Non-Proliferation Treaty; to agree to American inspection of the Dimona nuclear facility; and to condition delivery of fighter jets on Israel’s agreement to give up nuclear weaponry in exchange for strategic ground-to-ground Jericho missiles “capable of reaching the Arab capitals” although “not all the Arab capitals.”

The officials – cabinet secretaries and senior advisers who wrote the documents – withdrew step after step from an ambitious plan to block Israeli nuclearization, until they finally acceded, in internal correspondence – the content of the conversation between Nixon and Meir is still classified – to recognition of Israel as a threshold nuclear state. In fact, according to the American documents, the Nixon administration defined a double threshold for Israel’s move from a “technical option” to a “possessor” of nuclear weapons. The first threshold was the possession of “the components of nuclear weapons that will explode,” and making them a part of the Israel Defense Forces operational inventory.

The second threshold was public confirmation of suspicions internationally, and in Arab countries in particular, of the existence of nuclear weapons in Israel, by means of testing and “making public the fact of the possession of nuclear weapons.” Officials under Nixon proposed to him, on the eve of his conversation with Meir, to show restraint with regard to the Israeli nuclear program, and to abandon efforts to get Israel to cease acquiring 500-kilometer-range missiles with one-ton warheads developed in the Marcel Dassault factory in France, if it could reach an agreement with Israel on these points.

The Central Intelligence Agency today asked a court to allow more time to declassify its response to the Senate Select Committee on Intelligence report on CIA rendition, detention and interrogation (RDI) activities, which itself is undergoing a time-consuming declassification review. “This complex process requires the careful review of over 500 pages of highly classified material. In addition, sufficient time must be allowed not only for coordination with other agencies, but — after completion of declassification review — for implementation of security measures to ensure the safety of U.S. personnel and facilities overseas,” according to a May 15 motion filed by the government in a FOIA lawsuit brought by the ACLU. “Due to the fluid nature of this process, aspects of which are beyond the CIA’s control, the Agency does not yet have a firm date by which it can complete the processing of the CIA Response [to the SSCI report] and the so-called Panetta Report, although it hopes the declassification review and accompanying processing of those documents can be completed this summer.” The CIA therefore requested an extension of time to respond, to which the ACLU plaintiffs did not consent.

With respect to the Senate Intelligence Committee report itself, the government promised an “expeditious” declassification review of the executive summary, findings, and conclusions. “While all declassification decisions are guided by the need to protect national security interests, the President has expressed a clear intent to declassify as much of the executive summary, findings, and conclusions of the SSCI Report as possible, and intends the declassification process to be expeditious,” the government motion said. According to an April 18 letter from then-White House counsel Katherine Ruemmler, appended to the new motion, “The President supports making public the Committee’s important review of the historical RDI program, as he believes that public scrutiny and debate will help to inform the public understanding of the program and to ensure that such a program will not be contemplated by a future administration.

Senators on Wednesday expressed alarm at explosive allegations that the CIA might have spied on their computers to keep tabs on their controversial review of Bush-era “enhanced interrogation” techniques.ADVERTISEMENTLawmakers from both parties said that if the allegations against the CIA prove true, intelligence officials might have violated the law — and certainly violated the separation of powers enshrined in the Constitution.“I’m assuming that’s it’s not true, but if it is true, it should be World War III in terms of Congress standing up for itself against the CIA, ” Sen. Lindsey Graham (R-S.C.) told The Hill.Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) confirmed Wednesday that the CIA inspector general was investigating accusations that the covert agency had peered into the panel’s computers. But she didn’t comment on reports that the investigator has referred the matter to the Justice Department.Senate Armed Services Committee Chairman Carl Levin (D-Mich.), an ex officio member of the Intelligence panel, said the charge of spying is “extremely serious.”“There are laws against intruding and tampering, hacking into, accessing computers without permission. And that law applies to everybody,” he said.Brennan in a statement said he was "dismayed" by the “spurious allegations,” which he said were "wholly unsupported by the facts."

His statement was released Wednesday evening as McClatchy reported that the computer spying was allegedly discovered when the CIA confronted the Senate Intelligence panel about documents removed from the agency’s headquarters."I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the Executive Branch or Legislative Branch," Brennan said.“Until then, I would encourage others to refrain from outbursts that do a disservice to the important relationship that needs to be maintained between intelligence officials and congressional overseers."The allegations escalated a long-simmering feud between Democrats on the Intelligence panel and the CIA over the committee’s classified interrogation report, which provides an exhaustive look at the treatment of detainees in the years after Sept. 11.Sen. Mark Udall (Colo.) and two other Democrats on the Intelligence panel have criticized the CIA and its director, John Brennan, for blocking their efforts to declassify the 6,300-page investigation.“The CIA tried to intimidate the Intelligence Committee, plain and simple,” Udall said. “I’m going to keep fighting like hell to make sure the CIA never dodges congressional oversight again.”

Senators have said their review, which was completed in December 2012, is harshly critical of interrogation techniques such as waterboarding, concluding that they were ineffective and did not contribute to the capture of Osama bin Laden.Udall and other Democrats say the report needs to be released because it will "set the record straight" about the use of techniques that critics say amount to torture.While Democrats on the panel backed the report’s findings, most of the Intelligence Committee Republicans dissented.The CIA has objected to some of the report’s conclusions as well, though Udall says its internal review contradicts the agency’s public statements.Sen. Martin Heinrich (D-N.M.), who has joined Udall in pressing for the release of the report, said the allegations about CIA spying show the lengths that the agency will go to protect itself.“I think it’s been pretty clear that the CIA will do just about anything to make sure that this detention and interrogation report doesn’t come out,” Heinrich told The Hill.

Palm oil cultivation in West Africa, climate change, and how to kill Americans more effectively than cigarettes. These were the issues on Osama bin Laden’s mind in his final years as he struggled to direct the terrorist group’s activities from his hideout in Pakistan, according to newly released files retrieved from the compound where he was killed. Direct communications between the al Qaeda leader and his inner circle were entered as evidence in a terrorism trial recently concluded in Brooklyn, New York, effectively doubling the amount of publicly available documents recovered from bin Laden’s final hideout. Together the newly disclosed documents paint a picture of a man who, despite being holed up for years in his high-walled compound in the garrison town of Abbottabad, Pakistan, maintained a hands-on role managing al Qaeda in the face of a crippling “espionage war” and mounting bureaucratic obstacles. The emergence of the documents marks just the second time since the historic 2011 raid, which ended in the death of bin Laden, that documentary evidence recovered from his compound has been made public; 17 other documents were declassified and released to West Point’s Combating Terrorism Center in 2012.

The new documents were entered as evidence in the federal trial of Abid Naseer, a Pakistani national convicted of plotting with al Qaeda to carry out a bomb attack in Manchester, England between 2008 and 2009; Naseer is not mentioned in the documents. U.S. attorneys used the recovered documents to support the testimony of an FBI agent who was present when a team of U.S. Navy SEALs returned bin Laden’s body and the materials they recovered from his compound to a U.S. base in Afghanistan.

Also posted today are recently released CIA documents containing bogus information about Iraq’s nuclear programs

Two CIA reports on Iraq and its weapons activities produced during the months after 9/11; the CIA had denied both in their entirety. Neither treated Iraq as a significant threat, but both made claims which would become part of the justification for the 2003 war: that Iraq 1) had acquired aluminum tubes for gas centrifuges and 2) had deployed mobile biological laboratories, claims which were later disproven.

Documents 5A-B: Iraq through CIA Eyes after 9/11 A: Central Intelligence Agency, “The Iraq Threat,” 15 December 2001, SPWR [Senior Publish When Ready] 12501-07, Top Secret, excised copy B: Central Intelligence Agency, Senior Executive Memorandum [SEM], “In Response to a query about the status of Iran’s nuclear program,” 11 January 2002, Top Secret, excised copy Source: MDR request to CIA These two high-level CIA assessments from late 2001 and early 2002 demonstrate the lack of solid intelligence regarding Iraq’s WMD programs during the run-up to the 2003 war in Iraq.[3] There was a marked gap between the empirical information which the CIA could report, and be certain about, and the threat assessments which analysts were tasked to produce. Worst-case outcomes are proposed, then quickly undermined by admitting the lack of any intelligence to support doomsday scenarios. “The worst case scenario is illicit acquisition of sufficient fissile material, uranium or plutonium, to allow Baghdad to produce a crude nuclear weapon within a year. CIA has not detected a dedicated Iraqi effort to obtain fissile material from another government or on the black market but Baghdad could be expected to entertain any offers it deems credible” [SEM].

Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.

Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 

While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.

Exactly thirty years ago, President Ronald Reagan announced to the nation – after weeks of denials – that members of his White House staff had engaged in a web of covert intrigue linking illicit U.S. support for a guerrilla war in Central America with an illegal and politically explosive arms-for-hostages bargain with the Islamic Republic of Iran. The revelation quickly led to a new phrase – “Iran-Contra” – which became synonymous with political hubris, government incompetence, and dishonesty in the public sphere. Over the years, the National Security Archive has published major document collections, books, and web postings about Iran-Contra that expand on all of these areas of inquiry (see links in left column). Today, the Archive posts a selection of materials that spotlight the last of the elements above – deceitfulness – whose relevance has sadly become more pronounced after a bruising political season marked by examples and allegations of widespread public contempt for facts, evidence and the truth.

Today’s focus also follows Oxford Dictionaries’ selection earlier this month of the term “post-truth” as its Word of the Year, a choice it traced indirectly to the Reagan-era scandal: “Post-truth seems to have been first used in this meaning in a 1992 essay by the late Serbian-American playwright Steve Tesich in The Nation magazine. Reflecting on the Iran-Contra scandal and the Persian Gulf War, Tesich lamented that ‘we, as a free people, have freely decided that we want to live in some post-truth world.’” (See The Nation, January 6/13, 1992)  The historical record, including thousands of documents and hundreds of hours of testimony that are not possible to reproduce here, bears out the connection between the attitudes evident during the mid-1980s and what Americans have been witnessing in 2016. The Iran-Contra affair inundated national news coverage starting a few weeks before the November 1986 press conference (as stories about the Contra and Iran operations leaked out) and lasting through Summer 1987. A galvanized media that had faced criticisms for its lax treatment of Reagan seemed eager to make up for it now that it finally had a story of Watergate proportions. Picking up on aspects of secret administration policy that only a few intrepid reporters had noticed before, TV and print outlets uncovered sometimes shocking new information about the lengths to which the Reagan administration had gone to press the Contra war in and around Nicaragua without authorization from Congress. Similar disclosures came out about National Security Council staff-supervised contacts with Iranian intermediaries and Israeli counterparts, along with covert missile shipments from U.S. military stocks to Iran. Various committees in Congress hastily held hearings that produced more discoveries along the same lines. Eventually, a joint congressional select committee was convened and an independent counsel appointed by the courts, both of which uncovered volumes of invaluable documentary evidence of what had transpired, including:

A Senate bill promoted as a surveillance reform would codify the ability of the National Security Agency to search its troves of foreign phone and email communications for Americans’ information, and permit law enforcement agencies to search the vast databases as well. The Fisa Improvements Act, promoted by Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, would both make permanent a loophole permitting the NSA to search for Americans’ identifying information without a warrant – and, civil libertarians fear, contains an ambiguity that might allow the FBI, the DEA and other law enforcement agencies to do the same thing. “For the first time, the statute would explicitly allow the government to proactively search through the NSA data troves of information without a warrant,” said Michelle Richardson, the surveillance lobbyist for the ACLU.

“It may also expand current practices by allowing law enforcement to directly access US person information that was nominally collected for foreign intelligence purposes. This fourth amendment back door needs to be closed, not written into stone.” Feinstein’s bill passed the committee on an 11 to 4 vote on 31 October. An expanded report on its provisions released by the committee this week added details about the ability of both intelligence and law enforcement to sift through foreign communications databases that it accumulates under section 702 of the Fisa Amendments Act of 2008. Section 6 of Feinstein’s bill blesses what her committee colleague Ron Wyden, the Oregon Democrat and civil libertarian, has called the “backdoor search provision,” which the Guardian revealed thanks to a leak by Edward Snowden.  The section permits intelligence agencies to search “the contents of communications” collected primarily overseas for identifying information on US citizens, resident aliens and people inside the US, provided that the “purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.”

Section 6 bills itself as a “restriction,” but it would not stop the NSA from performing the warrantless search, merely requiring intelligence agencies to log their queries and make them “available for review” to Congress, the Fisa court, the Justice Department and inspectors general inside the executive branch. Additionally, the report on Section 6 explicitly states that the provision “does not limit the authority of law enforcement agencies to conduct queries of data acquired pursuant to Section 702 of Fisa for law enforcement purposes.” There is ambiguity surrounding whether the FBI can currently search through the NSA’s foreign communications databases, or is reliant on the NSA to pass on information from the databases relevant to the bureau. A declassified Fisa court document from 2011 refers to “FBI minimization procedures,” but it is unclear what those procedures are. A copy of the FBI minimization procedures from 2009, acquired by the ACLU under the Freedom of Information Act is almost completely redacted. So is the section in the government’s most recent report on its Section 702 collection dealing with the FBI’s role, though it contains references to how the FBI “receive[s] … unminimized Section 70 acquired communications” from the NSA. 

Our series on the NSA documents now being complete, I thought I would collect all of the posts together in one place. Here are the documents themselves. And here are our seven posts commenting on them: The Introduction Summary of the October 2011 FISC Opinion Summary of the November 2011 FISC Opinion Summary of the September 2012 FISC Opinion Summary of Statements to Congress Summary of the Minimization Procedures Summary of the Semi-Annual Compliance Report Now that the series is done, I will turn to the question of

Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:

Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).

Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.

A portion of an email (redacted and slightly altered to protect the source) sent to staff last week at a U.S. Marine Corps installation directing employees not to read this web site. The U.S. military is banning and blocking employees from visiting The Intercept in an apparent effort to censor news reports that contain leaked government secrets. According to multiple military sources, a notice has been circulated to units within the Army, Navy, Air Force, and Marine Corps warning staff that they are prohibited from reading stories published by The Intercept on the grounds that they may contain classified information. The ban appears to apply to all employees—including those with top-secret security clearance—and is aimed at preventing classified information from being viewed on unclassified computer networks, even if it is freely available on the internet. Similar military-wide bans have been directed against news outlets in the past after leaks of classified information.

A directive issued to military staff at one location last week, obtained by The Intercept, threatens that any employees caught viewing classified material in the public domain will face “long term security issues.” It suggests that the call to prohibit employees from viewing the website was made by senior officials over concerns about a “potential new leaker” of secret documents. The directive states: We have received information from our higher headquarters regarding a potential new leaker of classified information.  Although no formal validation has occurred, we thought it prudent to warn all employees and subordinate commands.  Please do not go to any website entitled “The Intercept” for it may very well contain classified material. As a reminder to all personnel who have ever signed a non-disclosure agreement, we have an ongoing responsibility to protect classified material in all of its various forms.  Viewing potentially classified material (even material already wrongfully released in the public domain) from unclassified equipment will cause you long term security issues.  This is considered a security violation.

A military insider subject to the ban said that several employees expressed concerns after being told by commanders that it was “illegal and a violation of national security” to read publicly available news reports on The Intercept. “Even though I have a top secret security clearance, I am still forbidden to read anything on the website,” said the source, who spoke on condition of anonymity due to the sensitivity of the subject.  “I find this very disturbing that they are threatening us and telling us what websites and news publishers we are allowed to read or not.”