The N.S.A. hates the Constitution, the Media Hates Actual Reporting

The New York Times is doing some actual reporting of late, and its wordsmiths are striving mightily to construct sentences that are in dire need of an editor’s tender attentions: 

“Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said that the rule concerning collection “about” a person targeted for surveillance rather than directed at that person had provoked significant internal discussion.”

Perhaps the following would be in order, given that the rule is discussed at length in preceding paragraphs: 

“Timothy Edgar, a former intelligence official in the Bush and Obama administrations, said that the rule had provoked significant internal discussion.”  

I digress, as I am wont to do when reading the terrible writing that passes muster at the New York Times.  

In Charlie Savage’s most recent article, entitled N.S.A. Said to Search Content of Messages to and From U.S., he reveals the shocking information that the N.S.A. surveils emails that are neither to nor from the actual suspects.  In fact, the NSA considers reading an email about a suspect to be surveillance targeting the suspect.  If I were to mention the name of an individual the NSA suspected of terrorism in my email, the N.S.A.’s position is that they can legally search my email containing a passing reference to the individual in question.  

After all, the ‘target’ is the suspect, not me.  

In this brave new world, it bears mentioning that the N.S.A. is part of an alphabet soup division over at the DEA known as the Special Operations Division.  The N.S.A.’s intercepts that detect evidence of criminal activity are compiled and shared with the DEA, which then uses the intercepts to disseminate tips to state and local law enforcement agencies. The DEA has instructed law enforcement to hide the origins of its tips and intelligence, because defense attorneys might use such information to establish that their client was subject to an unconstitutional search and seizure of information, thereby disqualifying him from conviction. Fruits of the poisonous tree will get a case dismissed in criminal courts across the nation, and thus law enforcement must lie.  

The technical term for lying over at the DEA. is parallel reconstruction. The tips were initially confined to drug cases, but the DEA expanded the use of the intelligence to money laundering and extortion cases as well.  Organized crime and gangs have also fallen under the purview of the Special Operations Division, and the DEA is aiding local prosecutors in their cases, and scrubbing their involvement.  How much of the DEA’s information comes from the NSA is unknown, because Reuters has only recently broken the story.  

What is known is that the DEA acknowledges the involvement of the NSA in generating tips for it to use.  Warrantless eavesdropping on American citizens is illegal, but the DEA insists that you can trust the NSA to ferret out American citizens, according to a senior law enforcement official: 

“They do a pretty good job of screening, but it can be a struggle to know for sure whether the person on a wiretap is American.”  

It’s not a struggle to know whether or not the person being bludgeoned by the DEA’s intel is an American citizen, but there are no worries: 

“As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them.”

Assuming the defendant does plead guilty, the DEA often pushes prosecutors to drop charges to avoid the risk of exposing the Special Operations Division’s involvement.  Additionally, current and former DEA agents put the Special Operations Division’s tip accuracy rate at 50-60%.  

For the NSA, targeting targets means reading the emails of Americans who merely mention the target; if those emails then contain mention of suspicious or potentially criminal activity, the NSA can then forward the information to the DEA via the Special Operations Division. Indeed, the Special Operations Division contains members from two dozen federal agencies, including the IRS, DHS, and the CIA.  It is potentially an information clearinghouse where unconstitutionally seized information can be aggregated, disseminated to relevant law enforcement agencies, with its origins sanitized via parallel reconstruction.  Attorneys and defendants never get a chance to challenge the veracity of sources, nor do they know that the information was gained through an unconstitutional search.  

The NSA’s targeting of emails not to or from the target in question was the only Top Secret portion of a set of rules leaked by Edward Snowden and published by the Guardian.  In much the same way, the documents examined by Reuters revealing the Special Operations Division’s existence were marked “Law Enforcement Sensitive” to keep the information confidential.  The abuse of such designations to conceal inappropriate or unconstitutional conduct on the part of federal agencies highlights the cheapening of security designations, and raises questions about whether or not the designations are being used for legitimate security purposes or to merely cover up corrupt and illegal overreaches.  

The semantic games engaged in by the NSA come into greater focus when the testimony of NSA Deputy Director John Inglis before the House Intelligence Committee is considered in this context: 

“We do not target the content of U.S. person communications without a specific warrant anywhere on the earth.”

The NSA’s position is this: they are vacuuming up every single communication, and therefore not targeting any individual communication.  After they attain your emails, your phone metadata, and various other forms of communication, you have not been targeted.  When your communications are subjected to keyword searches, and your communications come up as relevant to the search, you have still not been targeted; the keyword is the target, and your communications just so happen to be germane to that keyword search.  

Moreover, the notion that the NSA’s surveillance and collection of bulk communications is somehow new is a myth perpetuated by a servile and compliant media.  While Charlie Savage reports on the existence of the NSA’s targeting of non-target emails as though it is new, the known history of the NSA proves that it is not.  Additionally, Savage omits any mention of this history or XKeyscore, an NSA program that allows analysts with no court authorization to sift through your emails, online chats, and browsing history.  This omission of context enables the NSA to portray its individual programs as isolated, disparate efforts rather than an all-encompassing comprehensive effort to surveil and know everything Americans say, write, or do.  This effort is also divorced from historical context, which is important, because the NSA has engaged in these sorts of surveillance efforts from its beginnings.  

For Savage and most of his peers in the mainstream media, it’s not important to mention the present NSA scandal in the context of past NSA efforts.  Those efforts include programs like Project SHAMROCK, which enabled the NSA to collect all telegraphic communications without a warrant, and without regard for whether or not those communications involved actual crimes or national security issues.  Though the NSA insisted that its efforts were legal, the companies involved, including RCA, Western Union, and ITT, sought assurances that they would not be prosecuted.  They received that assurance in the form of a 1947 memo.  

The fact that Secretary of Defense Forrestal tried to have Congress amend Section 605 of the Communications Act of 1934 to make SHAMROCK legal only serves to indicate that Forrestal knew SHAMROCK wasn’t legal.  SHAMROCK had been in existence since 1945, and in 1949 it was incorporated under the newly minted NSA’s efforts.  NSA historian Thomas Johnson’s study of the agency reveals that the agency understood its efforts were “disreputable if not outright illegal.”  By May 1975, when the New York Times published an expose of SHAMROCK, it was shut down.  Of course, the NSA had ECHELON already up and running, and ECHELON was a surveillance program for a new age.  It enabled the NSA to listen in on real-time communications from targets as varied as Senator Strom Thurmond to legitimate security targets.  

Much of the NSA’s use of ECHELON involved targeting the communications of activists who opposed U.S. foreign policy in Vietnam and elsewhere; the surveillance of political activists was so egregious that President Carter had to issue an order to the NSA to stop collecting intelligence data on U.S. political figures. Congress was made aware of the program by Lockheed Martin employee and whistleblower Margaret Newsham, who gave closed-door testimony before a congressional committee. The committee never issued a report, and buried Newsham’s testimony.  Later on, investigative journalist Duncan Campbell came across committee papers and tracked Newsham down.  Campbell wrote a series of scathing reports in 1988 detailing the NSA’s ECHELON program, and its targeting of such dangerous individuals as Dr. Benjamin Spock.  

None of this is explored in much of the contemporary reporting on Edward Snowden’s leaks, because the media is servile.  Rather than indicting the NSA as an institution that has engaged in illegal, unconstitutional abuses from its inception, the media has chosen to excise the historical context to make the more recent transgressions appear isolated and shocking.  Those recent transgressions are not new or unprecedented; instead, they are the continuation of the NSA’s long-standing disdain for constitutional or legal limits on its surveillance efforts.  Those efforts are not directed at security threats per se, they are often directed at political targets who threaten to upend the efforts of bureaucrats who funnel billions of dollars to private contractors in the name of security.  

The media could and should report this, but they hate actual reporting almost as much as the NSA hates the Constitution.   

 

 

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