Foreign Policy Research Institute A Nation Must Think Before it Acts A Response to “Americans, the NSA is Still Listening: Section 702 is Alive and Well”

A Response to “Americans, the NSA is Still Listening: Section 702 is Alive and Well”

With Section 702 of the Foreign Intelligence Surveillance Act (FISA) now reauthorized for the next six years,[1] Lawrence Husick has posted a note offering his views on the analysis and summary of legislative events that I catalogued in Terrorists, America is Still Listening: Section 702 is Alive and Well.[2] While appearing to tacitly acknowledge Section 702’s value as an intelligence collection tool, his response then drifts into an armchair critique not, as best I can tell, on the substance of my analysis of Section 702 or my recounting of the legislative process that produced its renewal; but, instead, on the “undercurrent of vehement resentment” that he insists permeates my presentation. Given his focus both on what I wrote and on how I expressed it, I take this opportunity to offer both comment and clarity regarding several of his observations.

On Snowden and the Fourth Amendment

I begin with acknowledging that, on at least one point, Mr. Husick accurately judges my disposition. I have no use for the treachery and deceit by which Edward Snowden breached his confidentiality commitments, manipulated and abused his access, and then betrayed his country. Notably, five years after the first of his well-reported disclosures, Snowden has yet to reveal any program or action undertaken by the National Security Agency (NSA) or any other element of the Intelligence Community that broke the law. As the Privacy and Civil Liberties Oversight Board (PCLOB) concluded after its exhaustive post-Snowden review (and as remains true today), there has never been an intentional violation of the standards that govern the operation of the Section 702 Program—one of the most heavily regulated and tightly monitored undertakings conducted by the U.S. government.[3]

Edward Snowden is not an informed voice on intelligence programs. He is an egotist who parlayed limited access and larcenous breaches of security protocol into stealing enough of his country’s secrets to gain him the notoriety he craved, but not the substantive knowledge required to capably assess the various programs he compromised in the context of broader U.S. national security and intelligence policy. At least with regard to Snowden, if my comments appeared “vehement” to Mr. Husick, he does not miss the mark.

As for the broader lobby of Section 702 opponents, my prose reflects not resentment but, perhaps, a weariness borne of listening to this coalition repeatedly misrepresent Section 702 as infringing on constitutionally protected liberties. FISA has now been in place for nearly 40 years, and Section 702 was first passed nearly a decade ago. Section 702 certifications are reviewed at least annually by the Foreign Intelligence Surveillance Court (FISC) for conformity with the Fourth Amendment, so it seems reasonable to assume that if some aspect of Section 702 is constitutionally unhygienic, some federal court, somewhere, sometime would have said so.

Of course, quite the opposite has been true, and judicial approbation of Section 702 has been supplemented, in 2014, by the PCLOB’s thorough review and critique of the Section 702 Program. Even Mr. Husick concedes the accuracy of my “legal analysis of the Fourth Amendment status, that queries of the Section 702 database are not considered to be ‘separate searches’ that require the issuance of a search warrant.” Why, then, do Section 702’s critics repeatedly and tediously insist that the opposite is true? As Judge Dennis Saylor, who serves on the FISC, recently observed, “We are the only country in the world, the only one of 197 sovereign nations, that interposes a court between the government and its citizens [in connection with foreign intelligence surveillance].”[4] That indispensable feature of the FISA process generally, and Section 702 more particularly, should have muted the Fourth Amendment debate by now, but Section 702-haters seem completely incapable of accepting this judicially accepted legal framework for Section 702’s operations. While Mr. Husick worries that Section 702’s legislative fate is repeatedly determined by a small coterie of legislators with the highest clearances at the expense of broader debate, it is difficult to establish an agreed upon starting point for that debate when opponents stubbornly refuse to accept that the Section 702 Program as currently conducted satisfies the Fourth Amendment.

On the Legislative Process

It is true, as a practical matter, that the bulk of legislative work relating to the Intelligence Community is conducted by the intelligence and judiciary committees in each chamber, but any member of Congress has the ability to become better informed about the nation’s intelligence programs, including Section 702. Of course, the materials and briefings associated with these sensitive programs are not exchanged in hallways or anterooms, nor debated in open session; instead, those hearings are often held in closed session, and the materials must be reviewed in SCIFs[5] located throughout the Capitol complex. Reviewing these materials in this way is a necessary feature of legislating sensitive intelligence issues. As I noted in an earlier response to Mr. Husick,[6] if those members of Congress outside the intelligence and judiciary committees lack the initiative to acquaint themselves with the details of these programs, jettisoning critical intelligence undertakings because Congress is too indifferent, at least in the eyes of its critics, to provide effective oversight isn’t going to make any of us safer or more secure in the exercise of our liberties. I doubt that Section 702 critics like Mr. Husick would insist, for example, that the details or capabilities of the nation’s most important military weapons and tactics be discussed and debated openly—the Manhattan Project, as one example, would have been hopelessly compromised by such open discourse. Yet, these same critics, either through ignorance of or indifference to the singular fragility of Section 702-type intelligence programs, insist that American democracy suffers when intelligence activities like the Section 702 Program are addressed by Congress less transparently than, say, a federal highway bill or farm support legislation. This is dangerous naiveté when it comes to U.S. communications intelligence activities, a category of U.S. foreign intelligence efforts that Congress has long-recognized as both uniquely vital and vulnerable.

None of the commentary that I saw from Section 702 opponents, in Congress or out, including Mr. Husick, acknowledged this unique value or fragility, but it is essential background to any consideration of Section 702. Section 702 is a communications intelligence activity conducted by the NSA. Communications intelligence is a subset of the broader category of signals intelligence activities that, within the U.S. Intelligence Community, are conducted exclusively by the NSA, and involves the collection and processing of foreign communications to obtain foreign intelligence. The importance of communications intelligence to the Allies’ success in World War II has been historically well-documented in literary recounting of the breaking of both German and Japanese codes, and those efforts reflect that the information gleaned from communications intelligence efforts was considered both uniquely valuable and singularly fragile. Early efforts to reorganize U.S. communications intelligence activities in the 1950s noted that “the special nature of Communications Intelligence activities requires that they be treated in all respects as being outside the framework of other or more general intelligence activities.”[7] Contemporaneously with these reorganization efforts, Congress reflected its concern for protecting the nation’s communications intelligence programs by enacting 18 U.S.C. § 798, a part of the espionage statutes that specifically punishes the unauthorized disclosure of classified information concerning the communication intelligence activities of the United States. The House Report accompanying the passage of § 798 observes that the bill “is an attempt to provide . . . legislation for only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree.”[8]

It is myopic to comment on the manner in which Congress handled the reauthorization of Section 702, or the methods by which Congress and the Intelligence Community protect the operational details of the Section 702 Program, without an understanding of and appreciation for this history. While Mr. Husick offers an excerpt from Daniel Ellsberg that presumably is intended to portray the dangers of secrecy and limited access, I suggest that the following vignette better captures the exceptional vulnerability and grasp of the recondite dangers required to judge competently the handling of communications intelligence programs like Section 702.

Lessons from Westmoreland vs. CBS

In January 1982, CBS aired “The Uncounted Enemy: A Vietnam Deception,” a controversial documentary narrated by Mike Wallace and produced by George Crile, asserting that, in 1967, intelligence officers in the MACV[9] under the command of General William Westmoreland, in an effort to create the impression that the Vietnam War was being won, manipulated intelligence estimates of communist troops in South Vietnam to show fewer North Vietnamese and Viet Cong than were actually in country.

Westmoreland sued CBS, Wallace, and Crile for defamation. Pretrial discovery in the case extended to both plaintiff and defendants seeking access to information that the NSA and CIA possessed relevant to enemy troop levels in Vietnam in 1967.

In 1967, as today, the NSA was the exclusive U.S. agency conducting communications intelligence activities to obtain foreign intelligence. As part of that mission, the NSA targeted North Vietnamese and Viet Cong communications systems; collecting, processing and disseminating information obtained from those communications including intelligence derived from decrypted communications. Consistent with the perpetual effort to protect intelligence sources and methods, a relatively small number of individuals within the U.S. chain of command were cleared to know the source of the NSA-produced intelligence which correspondingly, directly and indirectly, provided insight into the level of success the NSA had achieved in exploiting those enemy encryption systems.

The encryption systems used to protect a country’s sensitive communications are very expensive, quite complicated and, consequently, once employed remain in use for extended periods of time. Development of new encryption systems is equally expensive and complicated so, in the bipolar world that existed in 1967, most encryption systems used to protect any government communications originated with either the Soviet Union or the United States. Generally, encryption systems flowed downhill; i.e., as the Soviets developed newer, presumably more secure systems, their older systems would be sent to North Vietnam, North Korea, or other countries for use. If the NSA had success exploiting a particular encryption system used by the Soviets, it was essential to maintain secrecy regarding that success in order to continue exploiting that system as it worked its way through the chain of other users.

By the time the Westmoreland case reached trial in 1984, the encryption systems used by North Vietnam in 1967 were being employed by other countries like Libya and Iraq. To the extent the NSA was continuing to exploit those systems for valuable foreign intelligence in 1984, it was essential that the success of the NSA’s efforts against these same systems in 1967 not be revealed or become apparent during the Westmoreland trial or the countries using those encryption systems would inevitably take countermeasures to frustrate the NSA’s efforts and potentially deprive the U.S. of the valuable foreign intelligence obtained from these sources.

Ultimately, through cooperation with the court and the parties in the case, a protocol was developed whereby those few individuals testifying at the Westmoreland trial who were aware that their testimony might include information derived from North Vietnamese encryption systems exploited by the NSA testified in a way that conveyed the substance of their relevant information without disclosing the source of the information or the methods used to obtain it.[10]

The Westmoreland trial experience offers an object lesson in why the NSA’s work, including its operation of the Section 702 Program, requires such extraordinary security. I submit that few outside the arcane world of communications intelligence would possibly have understood or anticipated that disclosing the level of success that the NSA had achieved against certain encryption systems in Vietnam in 1967 would potentially jeopardize the NSA’s intelligence collection efforts against completely different foreign targets in 1984, but this is precisely the sort of conundrum that makes communications intelligence “a category which is both vital and vulnerable to an almost unique degree.”[11]

I offer this personal recollection to illustrate that secrecy and security are especially critical to communications intelligence efforts, not due to an obsession with secrecy but precisely because the success of any such initiative can be so easily frustrated by changing a key, revising a code, or altering a communication practice. To preserve the NSA’s successes, the NSA, the Intelligence Community, and consumers of the NSA intelligence product in both the executive and legislative branches must limit disclosure of the details, practices, and successes (or failures) associated with the NSA’s communications intelligence undertakings. After all, as Benjamin Franklin once observed about the difficulties of maintaining secrecy: “Three may keep a secret, if two of them are dead.”

A Final Rebuttal

In closing, Mr. Husick expresses his concern about the tensions that he insists exist between a government that operates the Section 702 Program and the reasonable expectations of its citizens. According to Mr. Husick:

Still, one cannot help but wonder whether there is a fundamental tension between how the IC views its role in vacuuming up vast amounts of electronic communication from every corner of the globe, including unimaginable numbers of conversations between Americans and those overseas, and the entirely reasonable expectation of an average person (however misinformed that may be) that her Internet chats, emails, text messages, and Skype calls with her boyfriend in Paris and her Grandma in Peru are private, and should not be “collected” by her government, and then subject to retrospective computerized search.

This is precisely the sort of misleadingly apocryphal description of the scope of Section 702 that undermines public trust in the Program and in the Intelligence Community. Precision—and truth—matter in describing the reach of Section 702, and the actual privacy “intrusion” is nothing like what Mr. Husick describes. No one in the Intelligence Community is randomly collecting communications to a boyfriend in Paris or Grandma in Peru unless: (1) that boyfriend or grandmother is a foreigner,[12] AND (2) the boyfriend or grandmother is using a communication selector (like an email address) that is conveying foreign intelligence information fitting within criteria included in a Section 702 certification approved by the FISC. So, absent boyfriend, or Grandma, using communication links that are specifically targeted because they meet the criteria contained in a FISC-approved certification (such as an email address that has been used to communicate with a known foreign target), the NSA is not collecting those communications.

 Thus, the universe of communications triggering the privacy concerns advanced by Section 702 opponents like Mr. Husick is limited to those to or from that subset of U.S. persons communicating with foreigners located abroad whose activities have satisfied the targeting requirements of a Section 702 certification by having their communications selector (e.g., email address or phone number) linked to known foreign targets. So, unless Grandma or your Parisian beau is using his or her “Internet chats, emails, text messages, and Skype calls” to also communicate with a Section 702 target meeting a FISC-approved certification, the NSA is not collecting your communications to Grandma or the boyfriend.

 These collection distinctions matter because they demonstrate that Section 702 does not permit the sort of indiscriminate vacuuming of Grandma’s or boyfriend’s communications that Mr. Husick and like-minded critics persistently posit. Mr. Husick bemoans the lack of open debate on Section 702, but there is little chance for informed discussion with critics who consistently deny the Program’s constitutional legitimacy while exaggerating its practical application with examples like this.

[1] Section 702 provides the statutory basis for the Attorney General and the Director of National

Intelligence (DNI), jointly, to authorize the targeting of foreigners located abroad to acquire foreign intelligence information.

[2] Terrorists, America is Still Listening: Section 702 is Alive and Well, FPRI E-Notes, January 22, 2018.

[3] Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated

Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“PCLOB Report”), July 2, 2014, at 2, 11. See also, Office of National Intelligence “Fact Sheet” relating to the “Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) – 13th, 14th and 15th Joint Assessments” at 1, available at Overview_Fact_Sheet.

[4] “A Rare Look Inside America’s Most Secretive Court,” Boston College Law School Magazine, January 21, 2018.

[5] SCIFs are Sensitive Compartmented Information Facilities. See, e.g., Daniel Newhauser, “The Rooms Where Congress Keeps Its Secrets,” The Atlantic, May 28, 2015.

[6] “The Debate Over Foreign Intelligence Legislation: George Croner Responds to Lawrence

Husick,” FPRI E-Notes, October 11, 2017.

[7] National Security Council Intelligence Directive No. 9: Communications Intelligence Activities (USCID No. 9), March 10, 1950.

[8] H.R. Rep. No. 81-1895 at 2 (1950).

[9] “MACV” is the acronym used for the Military Assistance Command, Vietnam.

[10] Parenthetically, I was the representative of NSA’s Office of General Counsel who journeyed to New York to discreetly attend the Westmoreland trial. Behind the scenes, I briefed, for example, Robert McNamara and Daniel Graham (head of MACV’s military intelligence estimates), among others, on the testimonial protocol, referenced above, that had been agreed upon by the court and the parties for the presentation of testimony impacting NSA’s foreign intelligence activities.

[11] H.R. Rep. No. 81-1895 at 2 (1950).

[12] Section 702 does not permit the targeting of U.S. person communications without a FISA order, whether the U.S. person is located inside or outside the United States.