David Sirota writes: When introducing James Clapper as his director of national intelligence in 2010, President Obama specifically justified the appointment by saying Clapper is someone who “understands the importance of working with our partners in Congress (and) not merely to appear when summoned, but to keep Congress informed.” At the time, it seemed like a wholly uncontroversial statement; it was simply a president making a sacrosanct promise to keep the legislative branch informed, with the insinuation that previous administrations hadn’t.

Three years later, of course, James Clapper is now the embodiment of perjury before Congress. Indeed, when you couple Edward Snowden’s disclosures with this video of Clapper’s Senate testimony denying that the National Security Administration collects “any type of data on millions (of Americans),” Clapper has become American history’s most explicit and verifiable example of an executive branch deliberately lying to the legislative branch that is supposed to be overseeing it.

Incredibly (or, alas, maybe not so incredibly anymore), despite the president’s original explicit promises about Clapper, transparency and Congress, the White House is nonetheless responding to this humiliating situation by proudly expressing its full support for Clapper. Meanwhile, as of today’s announcement by U.S. Rep. Justin Amash, R-Mich., the demands for Clapper’s resignation are finally being aired on Capitol Hill. [Continue reading…]

John Cassidy writes: As the repercussions of Edward Snowden’s leaks about domestic surveillance continue to be debated, law professors and lawyers for the Bush and Obama Administrations are out in force, claiming that the spying agencies have done nothing wrong and it’s all much ado about nothing.

In the Financial Times, Philip Bobbitt, a law professor at Columbia who has worked in Democratic and Republican administrations, argued that the National Security Agency, in sweeping up a big part of the nation’s phone records, was upholding the law rather than subverting it. At the influential Lawfare blog, Joel F. Brenner, a legal consultant who between 2006 and 2009 was the head of counterintelligence at the White House, trotted out similar arguments and claimed that the United States “has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth.” On the op-ed page of the Wall Street Journal, Michael Mukasey, who served as Attorney General in the Bush Administration, questioned whether there has even been a meaningful infringement of privacy, writing, “The claims of pervasive spying, even if sincere, appear not merely exaggerated, but downright irrational.”

To which, my reply is: Lord save us from lawyers, especially the big shots who graduate from élite law schools and advise administrations. (Brenner is a Harvard man; Bobbitt and Mukasey are Yalies.) With some honorable exceptions, their primary function is protecting the interests of the political and corporate establishments, often by finding some novel and tendentious way to legitimate their self-interested actions. When lesser mortals object, they turn around and accuse them of being ignorant of the law. [Continue reading…]

Matthew M. Aid writes: This weekend, U.S. President Barack Obama sat down for a series of meetings with China’s newly appointed leader, Xi Jinping. We know that the two leaders spoke at length about the topic du jour — cyber-espionage — a subject that has long frustrated officials in Washington and is now front and center with the revelations of sweeping U.S. data mining. The media has focused at length on China’s aggressive attempts to electronically steal U.S. military and commercial secrets, but Xi pushed back at the “shirt-sleeves” summit, noting that China, too, was the recipient of cyber-espionage. But what Obama probably neglected to mention is that he has his own hacker army, and it has burrowed its way deep, deep into China’s networks.

When the agenda for the meeting at the Sunnylands estate outside Palm Springs, California, was agreed to several months ago, both parties agreed that it would be a nice opportunity for President Xi, who assumed his post in March, to discuss a wide range of security and economic issues of concern to both countries. According to diplomatic sources, the issue of cybersecurity was not one of the key topics to be discussed at the summit. Sino-American economic relations, climate change, and the growing threat posed by North Korea were supposed to dominate the discussions.

Then, two weeks ago, White House officials leaked to the press that Obama intended to raise privately with Xi the highly contentious issue of China’s widespread use of computer hacking to steal U.S. government, military, and commercial secrets. According to a Chinese diplomat in Washington who spoke in confidence, Beijing was furious about the sudden elevation of cybersecurity and Chinese espionage on the meeting’s agenda. According to a diplomatic source in Washington, the Chinese government was even angrier that the White House leaked the new agenda item to the press before Washington bothered to tell Beijing about it.

So the Chinese began to hit back. Senior Chinese officials have publicly accused the U.S. government of hypocrisy and have alleged that Washington is also actively engaged in cyber-espionage. When the latest allegation of Chinese cyber-espionage was leveled in late May in a front-page Washington Post article, which alleged that hackers employed by the Chinese military had stolen the blueprints of over three dozen American weapons systems, the Chinese government’s top Internet official, Huang Chengqing, shot back that Beijing possessed “mountains of data” showing that the United States has engaged in widespread hacking designed to steal Chinese government secrets. This weekend’s revelations about the National Security Agency’s PRISM and Verizon metadata collection from a 29-year-old former CIA undercover operative named Edward J. Snowden, who is now living in Hong Kong, only add fuel to Beijing’s position.

But Washington never publicly responded to Huang’s allegation, and nobody in the U.S. media seems to have bothered to ask the White House if there is a modicum of truth to the Chinese charges. [Continue reading…]

The South China Morning Post interviewed Snowden yesterday: Snowden believed there had been more than 61,000 NSA hacking operations globally, with hundreds of targets in Hong Kong and on the mainland.

“We hack network backbones – like huge internet routers, basically – that give us access to the communications of hundreds of thousands of computers without having to hack every single one,” he said.

“Last week the American government happily operated in the shadows with no respect for the consent of the governed, but no longer. Every level of society is demanding accountability and oversight.”

Snowden said he was releasing the information to demonstrate “the hypocrisy of the US government when it claims that it does not target civilian infrastructure, unlike its adversaries”.

“Not only does it do so, but it is so afraid of this being known that it is willing to use any means, such as diplomatic intimidation, to prevent this information from becoming public.”

The South China Morning Post reports: Edward Snowden says he wants to ask the people of Hong Kong to decide his fate after choosing the city because of his faith in its rule of law.

The 29-year-old former CIA employee behind what might be the biggest intelligence leak in US history revealed his identity to the world in Hong Kong on Sunday. His decision to use a city under Chinese sovereignty as his haven has been widely questioned – including by some rights activists in Hong Kong.

Snowden said last night that he had no doubts about his choice of Hong Kong.

“People who think I made a mistake in picking Hong Kong as a location misunderstand my intentions. I am not here to hide from justice; I am here to reveal criminality,” Snowden said in an exclusive interview with the South China Morning Post.

“I have had many opportunities to flee HK, but I would rather stay and fight the United States government in the courts, because I have faith in Hong Kong’s rule of law,” he added.

The Guardian reports: European Union officials have demanded “swift and concrete answers” to their requests for assurances from the US that its mass data surveillance programmes do not breach the fundamental privacy rights of European citizens.

The European commission’s vice-president, Viviane Reding, has sent a letter with seven detailed questions to the US attorney general, Eric Holder Jr, demanding explanations about Prism and other American data snooping programmes.

Reding warns him that “given the gravity of the situation and the serious concerns expressed in public opinion on this side of the Atlantic” she expects detailed answers before they meet at an EU-US justice ministers’ meeting in Dublin on Friday.

She also warns Holder that people’s trust that the rule of law will be respected – including a high level of privacy protection for both US and EU citizens – is essential to the growth of the digital economy, including transatlantic business and the nature of the US response could affect the whole transatlantic relationship. [Continue reading…]

Thomas Drake writes: What Edward Snowden has done is an amazingly brave and courageous act of civil disobedience.

Like me, he became discomforted by what he was exposed to and what he saw: the industrial-scale systematic surveillance that is scooping up vast amounts of information not only around the world but in the United States, in direct violation of the fourth amendment of the US constitution.

The NSA programs that Snowden has revealed are nothing new: they date back to the days and weeks after 9/11. I had direct exposure to similar programs, such as Stellar Wind, in 2001. In the first week of October, I had an extraordinary conversation with NSA’s lead attorney. When I pressed hard about the unconstitutionality of Stellar Wind, he said:

“The White House has approved the program; it’s all legal. NSA is the executive agent.”

It was made clear to me that the original intent of government was to gain access to all the information it could without regard for constitutional safeguards. “You don’t understand,” I was told. “We just need the data.”

In the first week of October 2001, President Bush had signed an extraordinary order authorizing blanket dragnet electronic surveillance: Stellar Wind was a highly secret program that, without warrant or any approval from the Fisa court, gave the NSA access to all phone records from the major telephone companies, including US-to-US calls. It correlates precisely with the Verizon order revealed by Snowden; and based on what we know, you have to assume that there are standing orders for the other major telephone companies.

It is technically true that the order applies only to meta-data. The problem is that in the digital space, metadata becomes the index for content. And content is gold for determining intent. [Continue reading…]

The Los Angeles Times reports: [A]nalysts said that Snowden seems to have greatly exaggerated the amount of information available to him and people like him.

Any NSA analyst “at any time can target anyone, any selector, anywhere,” Snowden told the Guardian. “I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had a personal email.”

Robert Deitz, a former top lawyer at the NSA and CIA, called the claim a “complete and utter” falsehood.

“First of all it’s illegal,” he said. “There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired,” he said.

NSA analysts who have the authority to query databases of metadata such as phone records — or Internet content, such as emails, videos or chat logs — are subject to stringent internal supervision and also the external oversight of the foreign surveillance court, former NSA officials said.

“It’s actually very difficult to do your job,” said a former senior NSA operator, who also declined be quoted by name because of the sensitive nature of the case. “There are all these checks that don’t allow you to move agilely enough.”

For example, the former operator said, he had go through an arduous process to obtain FISA court permission to gather Internet data on a foreign nuclear weapons proliferator living abroad because some of the data was passing through U.S. wires.

“When he’s saying he could just put any phone number in and look at phone calls, it just doesn’t work that way,” he said. ” It’s absurd. There are technical limits, and then there are people who review these sorts of queries.”

He added, “Let’s say I have your email address. In order to get that approved, you would have to go through a number of wickets. Some technical, some human. An individual analyst can’t just say, ‘Oh, I found this email address or phone number.’ It’s not simple to do it on any level, even for purely foreign purposes.”

The former senior government official said that as a computer expert, Snowden could have gained access on the NSA computer network to some of the documents he purportedly leaked. But other documents he claims that he provided to the Guardian and the Washington Post, such as the FISA order, are in theory supposed to be kept more tightly held, he said.

One of the issues investigators will be examining is “what access was he granted and what access did he gain” himself in order to obtain the documents, the former official said.

The Los Angeles Times reports: Google is asking the Obama administration for permission to disclose more information about requests it gets from national intelligence agencies for its users’ emails and other online communications.

The technology giant made the request in a letter to Atty. Gen. Eric H. Holder Jr. and FBI Director Robert S. Mueller III on Tuesday.

Google is trying to counteract damaging media reports that the company allows the National Security Agency access to users’ online communications.

“Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue,” Google’s chief legal officer, David Drummond, said in a blog post. “However, government nondisclosure obligations regarding the number of FISA (Foreign Intelligence Surveillance Act) national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.”

Google and other technology companies came under scrutiny last week after a government contractor leaked confidential documents revealing that the NSA has been receiving information from Google and other services, including data from U.S. phone call records and online communications to and from foreign targets.

Google and other companies insist that they only give up user communications when required by law, and they dispute certain details in reports in the Guardian and Washington Post newspapers that detailed their roles in an NSA data collection program called PRISM.

Presentations, by their very nature, just as often portray goals as they do actualities and PowerPoint is perhaps the tool par excellence in conjuring up the simplistic outlines of a make-believe world.

It’s possible that Google is now engaged in some PR theatrics — making a request that it knows will be turned down — but my hunch is that they would in fact be vindicated by full disclosure of the facts.

And if that’s the case, then the publication of all 41 slides from the NSA PRISM PowerPoint presentation might not result in the revelation of secrets that would be particularly damaging to national security per se. The damage might derive as much from American citizens becoming aware of what the NSA would like to do as it does from awareness of what it is actually doing. In other words, a need for the continued secrecy of the contents of these slides, might be more important for protecting the reputation of the NSA rather than protecting the operations of the agency.

The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

“This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens,” said Jameel Jaffer, ACLU deputy legal director. “It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.”

Click the “read more” link to see an interactive graphic examining the secret FISA Court order revealed last week. Continue reading →

FBI Director J. Edgar Hoover confering with then President-elect Richard M. Nixon, 1968.

Beverly Gage writes: Since last week’s revelations about the NSA, skeptics have questioned whether expansive intelligence powers might really lead to civil liberties abuses. From a historical perspective, there’s no need to ask: Such abuses have occurred many, many times.

Over the past century, American intelligence agencies have performed some amazing feats, outing Soviet infiltrators, hunting down terrorists, and keeping the homeland reasonably safe from its enemies. They have also used their powers to spy on millions of people engaged in legitimate political activity, and to go after critics in Congress, the media, and the public at large. Given this track record, it’s worth asking not whether such abuses might again occur, but whether we have sufficient reason to believe that they are not going to happen this time around.

To say that the expansion of surveillance powers comes with a high — and historically well-documented — risk of abuse is not to say that the NSA is interested in your cat photos. If you’ve never expressed an edgy political idea, you’re probably not at great personal risk. The people swept into the net at moments of expanded intelligence powers have almost always been outspoken political dissenters or critics of the intelligence establishment. The basic premise of the civil libertarian stance is that what happens to those people matters to all of us — not only because “we might be next” but because the free exchange of political ideas and criticism is the heart of American democracy. [Continue reading…]

Tim Shorrock writes: Amid the torrent of stories about the shocking new revelations about the National Security Agency, few have bothered to ask a central question. Who’s actually doing the work of analyzing all the data, metadata and personal information pouring into the agency from Verizon and nine key Internet service providers for its ever-expanding surveillance of American citizens?

Well, on Sunday we got part of the answer: Booz Allen Hamilton. In a stunning development in the NSA saga, Guardian reporter Glenn Greenwald revealed that the source for his blockbuster stories on the NSA is Edward Snowden, “a 29-year-old former technical assistant for the CIA and current employee of the defense contractor Booz Allen Hamilton.” Snowden, it turns out, has been working at NSA for the last four years as a contract employee, including stints for Booz and the computer-services firm Dell.

The revelation is not that surprising. With about 70 percent of our national intelligence budgets being spent on the private sector – a discovery I made in 2007 and first reported in Salon – contractors have become essential to the spying and surveillance operations of the NSA.

From Narus, the Israeli-born Boeing subsidiary that makes NSA’s high-speed interception software, to CSC, the “systems integrator” that runs NSA’s internal IT system, defense and intelligence, contractors are making millions of dollars selling technology and services that help the world’s largest surveillance system spy on you. If the 70 percent figure is applied to the NSA’s estimated budget of $8 billion a year (the largest in the intelligence community), NSA contracting could reach as high as $6 billion every year. [Continue reading…]