No Place to Hide

by Greenwald, Glenn

  Further discrediting Obama’s assurances is the subservient posture of the FISA court, which grants almost every surveillance request that the NSA submits. Defenders of the NSA frequently tout the FISA court process as evidence that the agency is under effective oversight. However, the court was set up not as a genuine check on the government’s power but as a cosmetic measure, providing just the appearance of reform to placate public anger over surveillance abuses revealed in the 1970s.

  The uselessness of this institution as a true check on surveillance abuses is obvious because the FISA court lacks virtually every attribute of what our society generally understands as the minimal elements of a justice system. It meets in complete secrecy; only one party—the government—is permitted to attend the hearings and make its case; and the court’s rulings are automatically designated “Top Secret.” Tellingly, for years the FISA court was housed in the Department of Justice, making clear its role as a part of the executive branch rather than as an independent judiciary exercising real oversight.

  The results have been exactly what one would expect: the court almost never rejects specific NSA applications to target Americans with surveillance. From its inception, FISA has been the ultimate rubber stamp. In its first twenty-four years, from 1978 to 2002, the court rejected a total of zero government applications while approving many thousands. In the subsequent decade, through 2012, the court has rejected just eleven government applications. In total, it has approved more than twenty thousand requests.

  One of the provisions of the 2008 FISA law requires the executive branch annually to disclose to Congress the number of eavesdropping applications the court receives and then approves, modifies, or rejects. The disclosure for 2012 showed that the court approved every single one of the 1,788 applications for electronic surveillance that it considered, while “modifying”—that is, narrowing the purview of the order—in just 40 cases, or less than 3 percent.

  Much the same was true of 2011, when the NSA reported 1,676 applications; the FISA court, while modifying 30 of them, “did not deny any applications in whole, or in part.”

  The court’s subservience to the NSA is demonstrated by other statistics as well. Here, for instance, is the FISA court’s reaction over the last six years to various requests made by the NSA under the Patriot Act to obtain the business records—telephone, financial or medical—of US persons:

  Thus, even in those limited cases when approval from the FISA court is needed to target someone’s communications, the process is more of an empty pantomime than a meaningful check on the NSA.

  Another layer of oversight for the NSA is ostensibly provided by the congressional intelligence committees, also created in the aftermath of the surveillance scandals of the 1970s, but they are even more supine than the FISA court. While they are supposed to conduct “vigilant legislative oversight” over the intelligence community, those committees are in fact currently headed by the most devoted NSA loyalists in Washington: Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House. Rather than offer any sort of adversarial check on the NSA’s operations, the Feinstein and Rogers committees exist primarily to defend and justify anything the agency does.

  As the New Yorker’s Ryan Lizza put it in a December 2013 article, instead of providing oversight, the Senate committee more often “treats senior intelligence officials like matinée idols.” Observers of the committee’s hearings on NSA activities were shocked by how the senators approached the questioning of NSA officials who appeared before them. The “questions” typically contained nothing more than long monologues by the senators about their recollections of the 9/11 attack and how vital it was to prevent attacks in the future. The committee members waved away the opportunity to interrogate those officials and perform their oversight responsibilities, instead propagandizing in defense of the NSA. The scene perfectly captured the true function of the intelligence committees over the last decade.

  Indeed, the chairs of the congressional committees have sometimes defended the NSA even more vigorously than the agency’s officials themselves have done. At one point, in August 2013, two members of Congress—Democrat Alan Grayson of Florida and Republican Morgan Griffith of Virginia—separately approached me to complain that the House Permanent Select Committee on Intelligence was blocking them and other members from accessing the most basic information about the NSA. They each gave me letters they had written to the staff of Chairman Rogers requesting information about NSA programs being discussed in the media. Those requests were rebuffed again and again.

  In the wake of our Snowden stories, a group of senators from both parties who had long been concerned with surveillance abuses began efforts to draft legislation that would impose real limits on the NSA’s powers. But these reformers, led by Democratic senator Ron Wyden of Oregon, ran into an immediate roadblock: counterefforts by the NSA’s defenders in the Senate to write legislation that would provide only the appearance of reform, while in fact retaining or even increasing the NSA’s powers. As Slate’s Dave Weigel reported in November:

  Critics of the NSA’s bulk data collection and surveillance programs have never been worried about congressional inaction. They’ve expected Congress to come up with something that looked like reform but actually codified and excused the practices being exposed and pilloried. That’s what’s always happened—every amendment or reauthorization to the 2001 USA Patriot Act has built more back doors than walls.

  “We will be up against a ‘business-as-usual brigade’—made up of influential members of the government’s intelligence leadership, their allies in thinktanks [sic] and academia, retired government officials, and sympathetic legislators,” warned Oregon Sen. Ron Wyden last month. “Their endgame is ensuring that any surveillance reforms are only skin-deep.… Privacy protections that don’t actually protect privacy are not worth the paper they’re printed on.”

  The “fake reform” faction was led by Dianne Feinstein, the very senator who is charged with exercising primary oversight over the NSA. Feinstein has long been a devoted loyalist of the US national security industry, from her vehement support for the war on Iraq to her steadfast backing of Bush-era NSA programs. (Her husband, meanwhile, has major stakes in various military contracts.) Clearly, Feinstein was a natural choice to head a committee that claims to carry out oversight over the intelligence community but has for years performed the opposite function.

  Thus, for all the government’s denials, the NSA has no substantial constraints on whom it can spy on and how. Even when such constraints nominally exist—when American citizens are the surveillance target—the process has become largely hollow. The NSA is the definitive rogue agency: empowered to do whatever it wants with very little control, transparency, or accountability.

  * * *

  Very broadly speaking, the NSA collects two types of information: content and metadata. “Content” here refers to actually listening to people’s phone calls or reading their emails and online chats, as well as reviewing Internet activity such as browsing histories and search activities. “Metadata” collection, meanwhile, involves amassing data about those communications. The NSA refers to that as “information about content (but not the content itself).”

  Metadata about an email message, for instance, records who emailed whom, when the email was sent, and the location of the person sending it. When it comes to telephone calls, the information includes the phone numbers of the caller and the receiver, how long they spoke for, and often their locations and the types of devices they used to communicate. In one document about telephone calls, the NSA outlined the metadata it accesses and stores:

  The US government has insisted that much of the surveillance revealed in the Snowden archive involves the collection of “metadata, not content,” trying to imply that this kind of spying is not intrusive—or at least not to the same degree as intercepting content. Dianne Feinstein has explicitly argued in USA Today that the metadata collection of all Americans’ telephone r
ecords “is not surveillance” at all because it “does not collect the content of any communication.”

  These disingenuous arguments obscure the fact that metadata surveillance can be at least as intrusive as content interception, and often even more so. When the government knows everyone you call and everyone who calls you, plus the exact length of all those phone conversations; when it can list every single one of your email correspondents and every location from where your emails were sent, it can create a remarkably comprehensive picture of your life, your associations, and your activities, including some of your most intimate and private information.

  In an affidavit filed by the ACLU challenging the legality of the NSA’s metadata collection program, Princeton computer science and public affairs professor Edward Felten explained why metadata surveillance can be especially revealing:

  Consider the following hypothetical example: A young woman calls her gynecologist; then immediately calls her mother; then a man who, during the past few months, she had repeatedly spoken to on the telephone after 11pm; followed by a call to a family planning center that also offers abortions. A likely storyline emerges that would not be as evident by examining the record of a single telephone call.

  Even for a single phone call, the metadata can be more informative than the call’s content. Listening in on a woman calling an abortion clinic might reveal nothing more than someone confirming an appointment with a generic-sounding establishment (“East Side Clinic” or “Dr. Jones’s office”). But the metadata would show far more than that: it would reveal the identity of those who were called. The same is true of calls to a dating service, a gay and lesbian center, a drug addiction clinic, an HIV specialist, or a suicide hotline. Metadata would likewise unmask a conversation between a human rights activist and an informant in a repressive regime, or a confidential source calling a journalist to reveal high-level wrongdoing. And if you frequently call someone late at night who is not your spouse, the metadata will reveal that, too. What’s more, it will record not only all the people with whom you communicate and how often, but also all the people with whom your friends and associates communicate, creating a comprehensive picture of your network of contacts.

  Indeed, as Professor Felten notes, eavesdropping on calls can be quite difficult due to language differences, meandering conversations, the use of slang or deliberate codes, and other attributes that either by design or accident obfuscate the meaning. “The content of calls are far more difficult to analyze in an automated fashion due to their unstructured nature,” he argued. By contrast, metadata is mathematical: clean, precise, and thus easily analyzed. And as Felten put it, it is often “a proxy for content”:

  Telephony metadata can … expose an extraordinary amount about our habits and our associations. Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations.

  In sum, writes Felten, “mass collection not only allows the government to learn information about more people, but it also enables the government to learn new, previously private facts that it could not have learned simply by collecting the information about a few, specific individuals.”

  Concern about the many uses that the government could find for this kind of sensitive information is especially justified because, contrary to repeated claims from President Obama and the NSA, it is already clear that a substantial number of the agency’s activities have nothing to do with antiterrorism efforts or even with national security. Much of the Snowden archive revealed what can only be called economic espionage: eavesdropping and email interception aimed at the Brazilian oil giant Petrobras, economic conferences in Latin America, energy companies in Venezuela and Mexico, and spying by the NSA’s allies—including Canada, Norway, and Sweden—on the Brazilian Ministry of Mines and Energy and energy companies in several other countries.

  One remarkable document presented by the NSA and the GCHQ detailed numerous surveillance targets that were plainly economic in nature: Petrobras, the SWIFT banking system, the Russian oil company Gazprom, and the Russian airline Aeroflot.

  For years, President Obama and his top officials vehemently denounced China for using its surveillance capabilities for economic advantage while insisting that the United States and its allies never do any such thing. The Washington Post quoted an NSA spokesperson saying that the Department of Defense, of which the agency is a part, “‘does engage’ in computer network exploitation,” but “does ***not*** engage in economic espionage in any domain, including ‘cyber’” [emphatic asterisks in the original].

  That the NSA spies for precisely the economic motive it has denied is proven by its own documents. The agency acts for the benefit of what it calls its “customers,” a list that includes not only the White House, the State Department, and the CIA, but also primarily economic agencies, such as the US Trade Representative and the Departments of Agriculture, Treasury, and Commerce:

  In its description of the BLARNEY program, the NSA lists the types of information it is supposed to provide to its customers as “counter terrorism,” “diplomatic”—and “economic”:

  Further evidence of the NSA’s economic interest appears in a PRISM document showing a “sampling” of the “Reporting Topics” for the week of February 2–8, 2013. A list of the types of information gathered from various countries clearly includes economic and financial categories, among them “energy,” “trade,” and “oil”:

  One 2006 memorandum from the global capabilities manager of the agency’s International Security Issues (ISI) mission spells out the NSA’s economic and trade espionage—against countries as diverse as Belgium, Japan, Brazil, and Germany—in stark terms:

  Reporting on a group of GCHQ documents leaked by Snowden, the New York Times noted that its surveillance targets often included financial institutions and “heads of international aid organizations, foreign energy companies and a European Union official involved in antitrust battles with American technology businesses.” It added that the US and British agencies “monitored the communications of senior European Union officials, foreign leaders including African heads of state and sometimes their family members, directors of United Nations and other relief programs [such as UNICEF], and officials overseeing oil and finance ministries.”

  The reasons for economic espionage are clear enough. When the United States uses the NSA to eavesdrop on the planning strategies of other countries during trade and economic talks, it can gain enormous advantage for American industry. In 2009, for example, Assistant Secretary of State Thomas Shannon wrote a letter to Keith Alexander, offering his “gratitude and congratulations for the outstanding signals intelligence support” that the State Department received regarding the Fifth Summit of the Americas, a conference devoted to negotiating economic accords. In the letter, Shannon specifically noted that the NSA’s surveillance provided the United States with negotiating advantages over the other parties:

  The NSA is equally devoted to diplomatic espionage, as the documents referring to “political affairs” demonstrate. One particularly egregious example, from 2011, shows how the agency targeted two Latin American leaders—Dilma Rousseff, the president of Brazil, along with “her key advisers”; and Enrique Peña Nieto, then Mexico’s leading presidential candidate (and now its president), along with “nine of his close associates”—for a “surge” of especially invasive surveillance. The document even features some of the intercepted text messages sent and received by Nieto and a “close associate”:

  One can speculate about why political leaders of Brazil and Mexico were NSA targets. Both countries are rich in oil resources. They are a big and influential presence in the region. And while they are far from adversaries, they are also not America’s closest and most trusted allies. Indeed, one NSA planning document—entitled “Identifying Challenges: Geopolitica
l Trends for 2014–2019”—list both Mexico and Brazil under the heading “Friends, Enemies, or Problems?” Others on that list are Egypt, India, Iran, Saudi Arabia, Somalia, Sudan, Turkey, and Yemen.

  But ultimately, in this case as in most others, speculation about any specific target is based on a false premise. The NSA does not need any specific reason or rationale to invade people’s private communications. Their institutional mission is to collect everything.

  If anything, the revelations about NSA spying on foreign leaders are less significant than the agency’s warrantless mass surveillance of whole populations. Countries have spied on heads of state for centuries, including allies. This is unremarkable, despite the great outcry that ensued when, for example, the world discovered that the NSA had for many years targeted the personal cell phone of German chancellor Angela Merkel.

  More remarkable is the fact that in country after country, revelations that the NSA was spying on hundreds of millions of their citizens produced little more than muted objections from their political leadership. True indignation came gushing forward only once those leaders understood that they, and not just their citizens, had been targeted as well.

  Still, the sheer scale of diplomatic surveillance the NSA has practiced is unusual and noteworthy. In addition to foreign leaders, the United States has also, for example, spied extensively on international organizations such as the United Nations to gain diplomatic advantage. One April 2013 briefing from SSO is typical, noting how the agency used its programs to obtain the UN secretary general’s talking points prior to his meeting with President Obama:

  Numerous other documents detail how Susan Rice, then ambassador to the UN and now President Obama’s national security adviser, repeatedly requested that the NSA spy on the internal discussions of key member states to learn their negotiation strategies. A May 2010 SSO report describes this process in connection with a resolution being debated by the UN that involved imposing new sanctions on Iran.