The New York Times Editorial Board: President Obama, who seems to think the American people simply need some reassurance that their privacy rights are intact, proposed a series of measures on Friday that only tinker around the edges of the nation’s abusive surveillance programs.

He said he wants “greater oversight, greater transparency, and constraints” on the mass collection of every American’s phone records by the National Security Agency. He didn’t specify what those constraints and oversight measures would be, only that he would work with Congress to develop them. But, in the meantime, the collection of records will continue as it has for years, gathering far more information than is necessary to fight terrorism.

He said he wants an adversary to challenge the government’s positions at the secret Foreign Intelligence Surveillance Court, a long-needed reform that would allow the court’s federal judges to hear more than one point of view in approving targets and security policy. But if those arguments remain closed to the public — and the president did not suggest otherwise — then it will be impossible to evaluate whether the change has had any effect. At a minimum, he could have urged the court to release unclassified summaries of its opinions when possible.

Finally, he announced that the N.S.A. would hire a civil liberties and privacy officer and create a Web site about its mission, and that a task force would review the nation’s surveillance technologies. These measures, however, are unlikely to have a real effect on intelligence gathering.

Fundamentally, Mr. Obama does not seem to understand that the nation needs to hear more than soothing words about the government’s spying enterprise. He suggested that if ordinary people trusted the government not to abuse their privacy, they wouldn’t mind the vast collection of phone and e-mail data.

Bizarrely, he compared the need for transparency to showing his wife that he had done the dishes, rather than just telling her he had done so. Out-of-control surveillance is a bit more serious than kitchen chores. It is the existence of these programs that is the problem, not whether they are modestly transparent. As long as the N.S.A. believes it has the right to collect records of every phone call — and the administration released a white paper Friday that explained, unconvincingly, why it is perfectly legal — then none of the promises to stay within the law will mean a thing.

If all Mr. Obama is inclined to do is tweak these programs, then Congress will have to step in to curb these abuses, a path many lawmakers of both parties are already pursuing. There are bills pending that would stop the bulk collection of communications data, restricting it to those under suspicion of terrorism. Other measures would require the surveillance court to make public far more of its work. If the president is truly concerned about public anxiety, he can vocally support legislation to make meaningful changes, rather than urging people to trust him that the dishes are clean.

Michael Phillips writes: In mid-July, Tanya Lokshina, the deputy director for Human Rights Watch’s Moscow office, wrote on her Facebook wall that she had received an e-mail from edsnowden@lavabit.com. It requested that she attend a press conference at Moscow’s Sheremetyevo International Airport to discuss the N.S.A. leaker’s “situation.” This was the wider public’s introduction to Lavabit, an e-mail service prized for its security. Lavabit promised, for instance, that messages stored on the service using asymmetric encryption, which encrypts incoming e-mails before they’re saved on Lavabit’s servers, could not even be read by Lavabit itself.

Yesterday, Lavabit went dark. In a cryptic statement posted on the Web site, the service’s owner and operator, Ladar Levison, wrote, “I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.” Those experiences led him to shut down the service rather than, as he put it, “become complicit in crimes against the American people.” Lavabit users reacted with consumer vitriol on the company’s Facebook page (“What about our emails?”), but the tide quickly turned toward government critique. By the end of the night, a similar service, Silent Circle, also shut down its encrypted e-mail product, calling the Lavabit affair the “writing [on] the wall.”

Which secret surveillance scheme is involved in the Lavabit case? The company may have received a national-security letter, which is a demand issued by a federal agency (typically the F.B.I.) that the recipient turn over data about other individuals. These letters often forbid recipients from discussing it with anyone. Another possibility is that the Foreign Intelligence Surveillance Court may have issued a warrant ordering Lavabit to participate in ongoing e-mail surveillance. We can’t be completely sure: as Judge Reggie Walton, the presiding judge of the FISA court, explained to Senator Patrick Leahy in a letter dated July 29th, FISA proceedings, decisions, and legal rationales are typically secret. America’s surveillance programs are secret, as are the court proceedings that enable them and the legal rationales that justify them; informed dissents, like those by Levison or Senator Ron Wyden, must be kept secret. The reasons for all this secrecy are also secret. That some of the secrets are out has not deterred the Obama Administration from prosecuting leakers under the Espionage Act for disclosure of classified information. Call it meta-secrecy. [Continue reading…]

The New York Times Editorial Board: It was bad enough in 2008 when Congress allowed the agency to spy without a warrant on e-mails and text messages between Americans and foreign targets of an investigation. That already strained the Fourth Amendment’s protections against illegal searches, but lawmakers decided it was justified as part of a terror investigation.

It turns out, as Charlie Savage revealed in The Times on Thursday, that the N.S.A. went far beyond those boundaries. Instead, it copies virtually all overseas messages that Americans send or receive, then scans them to see if they contain any references to people or subjects the agency thinks might have a link to terrorists.

That could very well include innocent communications between family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated.

Data collection on this scale goes far beyond what Congress authorized, and it clearly shreds a common-sense understanding of the Fourth Amendment. It’s as if the government were telling its citizens not to even talk about security issues in private messages or else they will come to the attention of the nation’s spies. “By injecting the N.S.A. into virtually every crossborder interaction, the U.S. government will forever alter what has always been an open exchange of ideas,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union.

Obama administration officials justified this unwarranted expansion of surveillance powers with the usual hairsplitting arguments over semantics. It’s not “bulk collection” of messages if the messages aren’t stored, they said (even if every message is analyzed by supercomputers as it is sent). It’s legitimate to search through conversations “about” a target, even if the target isn’t part of the conversation. Naturally, the Foreign Intelligence Surveillance Court approved these half-baked assertions with a secret opinion.

The disclosure of this practice makes it more urgent than ever that Congress clamp down on what is unquestionably the bulk collection of American communications and restrict it to clear targets of an investigation. Despite President Obama’s claim this week that “there is no spying on Americans,” the evidence shows that such spying is greater than the public ever knew.

IDG News Service reports: Silent Circle also shuttered its encrypted email service a few hours after Lavabit shut down citing an ongoing legal battle.

“We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now,” Silent Circle wrote in a blog post on Friday in reference to the closure by Lavabit.

The company, with U.S. headquarters in Maryland, said it had not received subpoenas, warrants, security letters, or anything else from any government, and “this is why we are acting now.”

The closure of Lavabit and Silent Circle reflect concern among email providers about government orders for customer data under the U.S. Foreign Intelligence Surveillance Act. Most of these come in the form of “gag orders” that prohibit the service providers from discussing in public the orders for disclosure of customer data. [Continue reading…]

Electronic Frontier Foundation: An important New York Times investigation from today [Thursday] reporting that the NSA “is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country,” coupled with leaked documents published by the Guardian, seriously calls into question the accuracy of crucial statements made by government officials about NSA surveillance.

The government has previously tried to reassure the public about its use of FISA Amendments Act Section 702 surveillance practices, emphasizing that, under Section 702, the government may not “intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.” Indeed, the chair of the Senate Intelligence Committee Senator Feinstein, in a letter to constituents who wrote to her expressing concern about the NSA’s spying program, said this: “[T]he government cannot listen to an American’s telephone calls or read their emails without a court warrant issued upon a showing of probable cause.”

We’ve written before about the word games the government plays in describing its surveillance practices: “acquire,” “collect,” and “content” are all old government favorites. The New York Times report proves Feinstein statement is false, and it’s clear it’s time to add “target” to the list of word games as well.

First, at least this much is clear: a “target” under the FAA must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.” Under the FAA, the government can thus “target” a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).

So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. The NSA then believes it can intercept and analyze all electronic communications of the target (telephone conversations, email conversations, chat, web browsing, etc) so long as the “target” is overseas and remains overseas. As others have noted, this includes conversations the “target” has with Americans, which would then be “incidentally” collected. Keep in mind this does not require a warrant or even the approval of a court, which is only one way Senator Feinstein’s reassurance was demonstrably false. But there’s still more. [Continue reading…]

Amy Davidson writes: Not every suspension-of-service notice for an e-mail company comes with a link to a legal-defense fund. Ladar Levison, the owner and operator of Lavabit, whose clients, reportedly, have included Edward Snowden, made it sound today as though he could use the help. “I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit,” Levison wrote in a note posted on his site.

I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on—the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

As Kevin Poulsen and others have pointed out, our collective experience has prepared us to guess what is going on here: Levison got either a national-security letter “or a full blown search or eavesdropping warrant.” In the weeks since the Guardian and Washington Post first began publishing stories with Snowden’s documents, the picture of the National Security Agency’s domestic-surveillance practices that’s come together is different from the one most everyone held before we’d ever heard Snowden’s name. And it has left the Administration’s explanations of what it does and doesn’t do looking pretty spotty, and at times just false.

Rebecca Greenfield adds: Because of the type of encryption Lavabit uses, peer-to-peer, even if the government intercepted Snowden’s emails sent using Lavabit, it wouldn’t be able to read them without his encryption key. If the NSA was only after those old emails, shutting down Lavabit wouldn’t do them much good anyway. But if the government demanded that Lavabit install a method for monitoring its users communications, as in an ongoing data collection program like PRISM, shutting down would be a drastic-but-effective way to avoid participation. So far, only one company is known to have challenegd a FISA order of that kind: Yahoo, and it lost.

If Lavabit doesn’t exist, then the NSA can’t monitor it. Of course, that just means Snowden will have to find another ultra-secure email provider. Maybe he should consider a company with zero American ties, per Levison’s urging:

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States.

The New York Times reports: The National Security Agency is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.

The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations.

It also adds another element to the unfolding debate, provoked by the disclosures of Edward J. Snowden, the former N.S.A. contractor, about whether the agency has infringed on Americans’ privacy as it scoops up e-mails and phone data in its quest to ferret out foreign intelligence. [Continue reading…]

Reuters reports: Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years.

The practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure.

A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA’s Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency.

An IRS spokesman had no comment on the entry or on why it was removed from the manual. Reuters recovered the previous editions from the archives of the Westlaw legal database, which is owned by Thomson Reuters Corp, the parent of this news agency.

As Reuters reported Monday, the Special Operations Division of the DEA funnels information from overseas NSA intercepts, domestic wiretaps, informants and a large DEA database of telephone records to authorities nationwide to help them launch criminal investigations of Americans. The DEA phone database is distinct from a NSA database disclosed by former NSA contractor Edward Snowden.

Monday’s Reuters report cited internal government documents that show that law enforcement agents have been trained to conceal how such investigations truly begin – to “recreate” the investigative trail to effectively cover up the original source of the information.

DEA officials said the practice is legal and has been in near-daily use since the 1990s. They have said that its purpose is to protect sources and methods, not to withhold evidence.

Defense attorneys and some former judges and prosecutors say that systematically hiding potential evidence from defendants violates the U.S. Constitution. [Continue reading…]

Jay Rosen writes: Last week on his CNN program Piers Morgan had just about finished a little speech on how you can’t have any bloke with a security clearance spewing classified information “on a whim” when James Risen, national security reporter for the New York Times, interrupted him: which document that’s come out don’t you want to talk about? Meaning: which of the things we’ve learned from Edward Snowden would you, as a journalist, prefer not to know? Which part of the surveillance story that’s come to light should have remained in darkness?

It was a good question. Piers Morgan did not have much of a reply.

When, on the same program, Jeffrey Toobin of the New Yorker said that public discussion about previously classified materials was “a good thing” but he still thought Edward Snowden was a criminal, Risen interrupted: “We wouldn’t be having this discussion if it wasn’t for him,” he said. “That’s the thing I don’t understand about the climate in Washington these days, is that people want to have debates on television and elsewhere, but then you want to throw the people who start the debates in jail.”

It was a sharp observation. Jeffery Toobin didn’t have much of a reply.

Ever since The Guardian began to publish its revelations from the files of Edward Snowden, I have been trying to frame the unanswered question that drives my own interest in the subject.

Disclosure: I am not pro-Snowden or anti-Snowden, because to put it that way unnecessarily personalizes the issue. I am not “for” the National Security Agency or against it. As a U.S. citizen I am implicated in what the NSA does, and I want it to succeed in discovering those who would harm us. My concern, as a writer and journalism professor, is with another fight: the one for public knowledge, for sunlight, for the facts to come out so we know what’s going on. I am primarily interested in the journalism that Edward Snowden has set in motion, and the gains in public knowledge that have resulted from his actions, which I have called the Snowden effect.

The question that bothers me most can be put this way:

Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?

I call it unanswered but it’s more than that. It’s like we can’t face it, so we choose not to frame it that way. The question is less unaddressed than it is repressed by a political system that can’t handle the weight of what it’s done. But now that system is being forced to face what happened while it wasn’t looking — at itself. [Continue reading…]

Richard Falk writes: The most influential media in the United States has lived up to its pro-government bias in the Snowden Affair in three major ways: firstly, by consistently referring to Snowden by the demeaning designation of ‘leaker’ rather than as ‘whistleblower’ or ‘surveillance dissident,’ both more respectful and accurate.

Secondly, they are completely ignoring the degree to which Russia’s grant of temporary refugee status to Snowden for one year was in full accord with the normal level of protection to be given to anyone accused of nonviolent political crimes in a foreign country, and pursued diplomatically and legally by the government that is seeking to indict and prosecute. In effect, for Russia to have turned Snowden over to the United States under these conditions would have been morally and politically scandalous considering the nature of his alleged crimes.

Thirdly, the media’s refusal to point out that espionage, the main accusation against Snowden, is the quintessential ‘political offense’ in international law, and as such is routinely excluded from any list of extraditable offenses. That is, even if there had been an extradition treaty between the United States and Russia, it should have been made clear that there was no legal duty on Russia’s part to turn Snowden over to American authorities for criminal prosecution, and a moral and political duty not to do so, especially in the circumstances surrounding the controversy over Snowden. [Continue reading…]

Mark Weisbrot writes: “It is a slap in the face of all Americans,” said Senator John McCain (R – AZ), referring to Russia’s decision to grant asylum to Edward Snowden. He demanded that the Russians face “serious repercussions” for their decision.

Well, turn the other cheek, I say. McCain ran for president in 2008 promising to be more belligerent towards the Russians, so this is normal for Dr.Strangelove and his crusty Cold War foaming at the mouth.

Not to be outdone, Democratic Senator Charles Schumer (D-NY) said that Russia had “stabbed us in the back,” and that “each day that Mr. Snowden is allowed to roam free is another twist of the knife”.

Twist and shout! The Russians did a big favour for the freedom-loving peoples of the world, including those in the US who can still think with our own brains. The self-righteous pundits who complain about Russia’s own human rights record, as if this were even remotely relevant, might try to recall how Snowden ended up there in the first place. He was passing through Moscow on his way to South America, and it was only by virtue of Washington’s “gross violations of his human rights,” as Amnesty International called it, that he got stuck there. [Continue reading…]

Tim Cusing writes: One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we’ve discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they’ve hit those walls, they’ve been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.

NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it’s all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.

Slate’s Ryan Gallagher has a post taking Michael Hayden, former director of the NSA and CIA, to task for statements he made supporting X-KEYSCORE shortly after the Guardian released the leaked documents.

Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it’s really good news.”

Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that’s been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.

Hayden’s enthusiasm for expanded haystack construction notwithstanding, there’s more to this interview than just the former boss applauding the work of his successors. The interview, conducted by Erin Burnett of CNN, presses a question NSA supporters like Hayden (and Gen. Alexander) have been dodging since day one. Namely: does the NSA have the ability to spy on Americans’ phone calls, emails and internet usage in real time? [Continue reading…]

John Kiriakou writes: The conviction of Bradley Manning under the 1917 Espionage Act, and the US Justice Department’s decision to file espionage charges against NSA whistleblower Edward Snowden under the same act, are yet further examples of the Obama administration’s policy of using an iron fist against human rights and civil liberties activists.

President Obama has been unprecedented in his use of the Espionage Act to prosecute those whose whistleblowing he wants to curtail. The purpose of an Espionage Act prosecution, however, is not to punish a person for spying for the enemy, selling secrets for personal gain, or trying to undermine our way of life. It is to ruin the whistleblower personally, professionally and financially. It is meant to send a message to anybody else considering speaking truth to power: challenge us and we will destroy you.

Only ten people in American history have been charged with espionage for leaking classified information, seven of them under Barack Obama. The effect of the charge on a person’s life – being viewed as a traitor, being shunned by family and friends, incurring massive legal bills – is all a part of the plan to force the whistleblower into personal ruin, to weaken him to the point where he will plead guilty to just about anything to make the case go away. I know. The three espionage charges against me made me one of “the Obama Seven”. [Continue reading…]

Bea Edwards writes: When General Michael Hayden sat down to tape Fox News Sunday, he blinked quickly and acknowledged Chris Wallace’s introduction. Then, in response to Wallace’s third question, he proceeded to tell a huge whopper, without ever losing eye contact with the camera and the audience. That would be us.

General Hayden disputed the fact that Edward Snowden, the former National Security Agency (NSA) contractor who disclosed the wholesale electronic surveillance of Americans, is a whistleblower. Because Snowden did not make his disclosures through internal channels at the NSA, Hayden strongly implied – without actually saying so – he is a traitor.

Look, a whistleblower is someone who raises concerns within our government in order to affect change. There is no evidence whatsoever that this young man warned anyone, went to his supervisor, his supervisor’s boss, even to the congressmen. No evidence of that whatsoever. What he did was go to Glenn Greenwald and some other news outlets and publish information that he may, in his own conscience, believe we need to be concerned about. But what he did was not tell the appropriate authorities. He told the world, including our enemies. And he’s made it more difficult for our security services to keep America safe.

To be sure, Snowden did not go to his supervisors or to the Congress. He did not do this because four other NSA whistleblowers (only three of whom are public) had already done it, and they had been subjected to demotion, termination and FBI raids. One of them was indicted under the Espionage Act and investigated for four years before the charges imploded. The unfortunate Congressional staffer who supported their allegations was also raided at home by the FBI and is now suing the government for the return of her personal effects.

Snowden did not follow this same course because he was aware of what had happened. He has said as much.

Even more to the point, Hayden knew all about this, too. In fact, General Hayden was at the top of the internal channel that meted out such vicious reprisal against the previous NSA whistleblowers. [Continue reading…]

It’s not unusual to come across a report in the New York Times that reeks of government oversight — a report that should have some kind of reader health warning such as: “The U.S. government approves this message.”

For instance, on Saturday under the headline, “Other Agencies Clamor for Data N.S.A. Compiles,” Eric Lichtblau and Michael S Schmidt reported:

The National Security Agency’s dominant role as the nation’s spy warehouse has spurred frequent tensions and turf fights with other federal intelligence agencies that want to use its surveillance tools for their own investigations, officials say.

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Intelligence officials say they have been careful to limit the use of the security agency’s troves of data and eavesdropping spyware for fear they could be misused in ways that violate Americans’ privacy rights.

This is clearly such a self-serving narrative for the NSA, one has to wonder: who initiated the report? The New York Times or the NSA?

My first response when reading this was to simply think: spare me the bullshit about the choir boys who run the NSA.

Rather than post a clip here and bother explaining why it stank, it seemed better ignored.

But then an exclusive report from Reuters appeared — a report revealing that in blatant disregard for the United States Constitution, the NSA does indeed provide law enforcement agencies with intelligence intercepts.

That the Reuters report would come out within hours of the New York Times report could be a stunning coincidence, but if you believe that you probably also believe that NSA chief Keith Alexander and DNI James Clapper would never lie.

That government officials spoon-feed stories to press stenographers is not exactly news. However, the “coincidence” of these two reports does suggest an additional and more disturbing explanation about how the NSA is able to play the media: through surveillance of journalists as they are gathering information for news reports.

Why would the NSA not regard reporting about the NSA as raising national security concerns? Indeed, what better way could there be of tracking down leakers than by keeping a close eye on the relatively small number of journalists who are likely to be contacted by any would-be whistle-blower?

When trust has already been broken, it’s no good for presidents or other government officials to reassure the public that the NSA would not spy on journalists. Good faith has already been fully spent. The only way of repairing the damage is through utter transparency.

Reuters reports: A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

“I have never heard of anything like this at all,” said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD’s work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked “Law Enforcement Sensitive,” a government categorization that is meant to keep them confidential.

“Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.”

A spokesman with the Department of Justice, which oversees the DEA, declined to comment.

But two senior DEA officials defended the program, and said trying to “recreate” an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

“It’s just like laundering money – you work it backwards to make it clean,” said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.

“That’s outrageous,” said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. “It strikes me as indefensible.”

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin “would not only be alarming but pretty blatantly unconstitutional.”

Lustberg and others said the government’s use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant’s identity or classified evidence, to determine whether the information is relevant to the defense.

“You can’t game the system,” said former federal prosecutor Henry E. Hockeimer Jr. “You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?”

Some lawyers say there can be legitimate reasons for not revealing sources. Robert Spelke, a former prosecutor who spent seven years as a senior DEA lawyer, said some sources are classified. But he also said there are few reasons why unclassified evidence should be concealed at trial.

“It’s a balancing act, and they’ve doing it this way for years,” Spelke said. “Do I think it’s a good way to do it? No, because now that I’m a defense lawyer, I see how difficult it is to challenge.”

One current federal prosecutor learned how agents were using SOD tips after a drug agent misled him, the prosecutor told Reuters. In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept. [Continue reading…]

At Slate, Jameel Jaffer and Brett Max Kaufman do an excellent job of translating NSA newspeak into meaningful English.

I do have one gripe though — and this is something endemic in mainstream news reporting: everyone is terrified of using the words lie and lying.

Hardly anyone dare unequivocally articulate what everyone knows to be an indisputable fact: that DNI James Clapper lied to Congress when he responded to a question about the NSA collecting any type of data on millions of Americans by answering: “No, sir,” to Senator Wyden.

One doesn’t require the powers of telepathy or need to have taken a deposition from a priest to whom Clapper might have confessed, to know that he was lying.

We now know without doubt that Clapper misled Congress and he later said: “My response was clearly erroneous”. But to say that the content of his statement was erroneous and that he misled Congress, sidesteps the issue of intention. It essentially says that without additional information, we are incapable of determining whether it was Clapper’s intention to mislead Congress — if we knew that was his intention, then we could without hesitation say he was lying.

Yet, who can be in any doubt that as Director of National Intelligence and thus responsible for oversight of the NSA, Clapper would have been fully aware of FISA court orders requiring Verizon and others to provide the NSA with metadata on all its customers? Clapper knew what Wyden knew and that when Wyden said “any type of data at all” he had crafted his question precisely to include metadata. And thus Clapper uttered a bald-headed lie and committed perjury, a crime for which he could be imprisoned for up to five years — that is, if anyone in Congress cared about upholding the law.

James Clapper, the director of national intelligence, has been harshly criticized for having misled Congress earlier this year about the scope of the National Security Agency’s surveillance activities. The criticism is entirely justified. An equally insidious threat to the integrity of our national debate, however, comes not from officials’ outright lies but from the language they use to tell the truth. When it comes to discussing government surveillance, U.S. intelligence officials have been using a vocabulary of misdirection — a language that allows them to say one thing while meaning quite another. The assignment of unconventional meanings to conventional words allows officials to imply that the NSA’s activities are narrow and closely supervised, though neither of those things is true. What follows is a lexicon for decoding the true meaning of what NSA officials say. [Continue reading…]

Glenn Greenwald writes: Members of Congress have been repeatedly thwarted when attempting to learn basic information about the National Security Agency (NSA) and the secret FISA court which authorizes its activities, documents provided by two House members demonstrate.

From the beginning of the NSA controversy, the agency’s defenders have insisted that Congress is aware of the disclosed programs and exercises robust supervision over them. “These programs are subject to congressional oversight and congressional reauthorization and congressional debate,” President Obama said the day after the first story on NSA bulk collection of phone records was published in this space. “And if there are members of Congress who feel differently, then they should speak up.”

But members of Congress, including those in Obama’s party, have flatly denied knowing about them. On MSNBC on Wednesday night, Sen. Richard Blumenthal (D-Ct) was asked by host Chris Hayes: “How much are you learning about what the government that you are charged with overseeing and holding accountable is doing from the newspaper and how much of this do you know?” The Senator’s reply:

“The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me.”

But it is not merely that members of Congress are unaware of the very existence of these programs, let alone their capabilities. Beyond that, members who seek out basic information – including about NSA programs they are required to vote on and FISA court (FISC) rulings on the legality of those programs – find that they are unable to obtain it. [Continue reading…]

McClatchy reports: The world’s most closely watched layover ended on Thursday as Russia granted temporary asylum to Edward Snowden, the accused intelligence leaker who’d been holed up in a Moscow airport’s transit lounge since June 23.

The Obama administration, which for weeks had issued only muted criticism of Russia as it implored President Vladimir Putin’s government to “do the right thing,” lashed out at the decision to offer Snowden a haven but didn’t dwell on possible repercussions.

Members of Congress fumed, calling on President Barack Obama to respond firmly. Sen. Lindsey Graham, R-S.C., said the affront was a “game changer” for U.S.-Russia relations. Sen. Charles Schumer, D-N.Y., said “Russia has stabbed us in the back” and asked Obama to recommend moving the G-20 economic summit, which is scheduled for next month in the Russian city of St. Petersburg.

But relations with Russia already are so frayed, analysts say, that there’s little the U.S. could do to punish Putin for taking in Snowden, who’s regarded by many here and abroad as a whistleblower for revealing a top-secret government spy program.

As dramatic as Snowden’s revelations are, his hiding out in Russia may not even be the worst snag in bilateral relations, which have deteriorated over the past 18 months and killed Obama’s goal of a “reset.” Other strains include disagreements over Syria, Russia’s freeze on U.S. adoptions of Russian children, and Congress’ approval of a law barring several Russian officials from entering the U.S. [Continue reading…]