Those who have read my previous accounts of the ongoing investigation by the U.S. House Committee on Intelligence’s investigation of surveillance, unmasking and leaking of American’s citizens names – today we continue that as a result of the latest information to come out from this week’s committee hearings and the recent revelation of the sizeable increase requested by the Obama administration over the last several years.
During his final year in office, President Barack Obama’s national security and intelligence team significantly expanded efforts to search National Security Agency (NSA) intercepts for information about Americans, distributing thousands of intelligence reports across government with the unredacted names of U.S. residents during the midst of a divisive 2016 presidential election.
The data, made available this week by the Office of the Director of National Intelligence (ODNI) provides the clearest evidence to date of how information accidentally collected by the NSA overseas about Americans was subsequently searched and disseminated after President Obama loosened privacy protections to make such sharing easier in 2011 in the name of national security. A court affirmed his order.
More concerning is that the revelations are particularly sensitive since the NSA is legally forbidden from directly spying on American citizens both home and abroad and its authority to conduct warrantless searches on foreigners is up for renewal in Congress later this year. And it comes as lawmakers investigate President Trump’s own claims that his privacy was violated by his predecessor President Obama during and after the November 2016 U.S. Election.
According to the latest research and analysis, during his final year in office, President Barack Obama’s team significantly expanded efforts to search NSA intercepts for information about American citizens, distributing thousands of intelligence reports across the U.S. government with the unredacted names of U.S. residents during the midst of a divisive 2016 presidential election.
The revelations are particularly sensitive since the NSA is legally forbidden from directly spying on Americans and its authority to conduct warrantless searches on foreigners is up for renewal in Congress later this year. And it comes as lawmakers investigate President Trump’s own claims his privacy was violated by his predecessor during the 2016 election.
Research of the classified intelligence intercepts, reveal Obama administration government officials conducted 30,355 searches in 2016 seeking information about American citizens in NSA intercept metadata, which include telephone numbers and email addresses. The activity amounted to a 27.5 percent increase over the prior year and more than triple the 9,500 such searches that occurred in 2013, the first year such data was kept.
Further, the Obama administration in 2016 also scoured the actual contents of the NSA intercepted calls and emails for 5,288 Americans, an increase of 13 percent over the prior year and a massive spike from the 198 names searched in 2013. As a result, the actual searches ultimately resulted in 3,134 NSA intelligence reports with unredacted U.S. names being distributed across the U.S. government in 2016, and another 3,354 reports in 2015. About half the time, U.S. identities were unredacted in the original reports while the other half were unmasked after the fact by special request of Obama administration officials were sought and approved.
Among those whose names were unmasked in 2016 or early 2017 were either campaign or transition associates of President Donald Trump as well as members of the U.S. Congress and their staffers. The data kept by ODNI is missing some information from one of the largest consumers of NSA intelligence, the FBI, and officials have acknowledged the numbers are likely to be much higher when the FBI’s activity is added.
The research is obviously clear that without any doubt, there was a significant spike in the requests to surveil, and to search on American citizens in the NSA database,” according to U.S. intelligence officials familiar with the collection effort. This is extremely serious because this is a blatant violation of the law and because of the extremely sensitive nature of the data. Unfortunately, the Obama administration made it’s simply too easy for officials to make requests as well as the requirements to grant and confirm approval. Despite the fact that there are safeguards, there is always concern and vigilance about possible political or prurient motives that go beyond national security concerns, particularly when more sensitive information on U.S. citizens is made available to more officials, there are so many pitfalls and situations that could result in misuse of the data or compromise.
Further, many in the legal community dealing with privacy and civil liberties of American citizens, have long raised concerns about the NSA’s ability to spy on Americans, noting that the rise in surveillance and searches is a troubling pattern that should concern members of both political parties because it has occurred with little oversight from the courts or Congress. In addition, there seemed to be a universal trend on behalf of the Obama administration between 2011 and 2016 toward more surveillance and more surveillance that impacts Americans’ privacy without obtaining a warrant.
Intelligence data gained from surveillance and research from the data during the Obama administration confirmed further that there was a lack of acknowledgment that information is being specifically and increasingly mined about Americans for investigations that have little or nothing to do with international terrorism, as the administration claimed and tried to use as its justification. Further concerns were raised by the release last month of a previously classified Foreign Intelligence Surveillance Court document that revealed that then NSA has a “potentially very large and broad” collection of data on U.S persons that was never intended under the law.
Accordingly, U.S. intelligence officials confirmed the growth in queries about Americans’ data held by the NSA but declined to explain the reasons, except to say the requests for access grew after intelligence agency officials became more comfortable with Obama’s 2011 executive order. They stressed the NSA has strict rules in place to govern when searches for American citizens are being conducted and when a U.S. person’s identity can be unmasked. The data that emerged reflects that Obama substantially eased the rules starting in 2011 allowing for government officials, including political appointees, to unmask and obtain information about Americans in NSA intercepts.
The easing of the authority to surveil and search against American citizens allowed political appointees like former National Security Adviser Susan Rice to request and review the unmasked names of Trump campaign or transition officials intercepted in foreign conversations late last year. Further, it also resulted in the frequent unmasking of members of Congress and their staff, as often as once a month, according to multiple confirmed reports.
The NSA is allowed to spy on foreign powers without a court warrant under Section 702 of the Foreign Surveillance Intelligence Act, but is forbidden by law from directly and specifically targeting Americans.
Speaking from experience, for years, the NSA was required to follow strict rules to protect the accidental intercepts of Americans from being consumed by other government agencies. The rules required a process known as minimization, where the identity of an intercepted American is redacted or masked with generic references such as; American No. 1, American No. 2, etc.
Nevertheless, following 9/11, the intelligence community fought hard over the last decade starting under George W. Bush and continuing under Obama to gain greater access to NSA intercepts of Americans overseas, citing the growing challenges of stopping lone-wolf terrorists, state-sponsored hackers, and other foreign asymmetric threats. President Obama obliged with a series of orders that began in 2011, moves that were approved by the FISC.
As of today, the power to unmask an American’s name — once considered a rare event in the intelligence and civil liberty communities – that authority now resides with give or take about 20 NSA officials. The FBI also has the ability to unmask Americans’ names collected under FISA to other intelligence professionals and policymakers, though it hasn’t provided data on its frequency. The justification for requesting such unmasking can be as simple as claiming “the identity of the United States person is necessary to understand foreign intelligence information, or assess its importance,” according to a once-classified document that the Obama administration submitted in October 2011 for approval by the Foreign Intelligence Surveillance Court. That memo laid out specifically how and when the NSA could unmask an American’s identity.
Intelligence officials try to assauge concerns by saying that FISA Section 702 activities are actually focused only on foreign powers and stopping national security threats, the exact argument that FBI Director James Comey struck anew on Wednesday during testimony before the Senate Judiciary Committee. It was noted that; “702 is a critical tool to protect this country and the way it works is we are allowed to conduct surveillance again, under the supervision of the Foreign Intelligence Surveillance Court on non-U.S. persons who are outside the United States if they’re using American infrastructure; an email system in the United States, a phone system in the United States. So it doesn’t involve U.S. persons and doesn’t involve activity in the United States,” according to Comey in his testimony.
Nevertheless, legal critics claim such representations aren’t accurate because the NSA accidentally collects so much information on Americans and then shares it after the fact. The FBI, for instance, regularly queries the NSA database and in a declassified court document in March 2017 indicated that; “there is no requirement that the matter be a serious one, nor that it have any relation to national security.” The reality is we have an invasive surveillance program and the data has shown and revealed that the impact on Americans is quite substantial.
While a U.S. federal judge in Washington has ruled in 2013, and again in 2015 that the NSA collection of data on Americans violates the 4th Amendment of the Constitution, but that ruling is winding its way through appeals. The FISA court, meanwhile, continues to support the intelligence community’s continued use of the data, as recently as in 2015. It would be of critical importance and priority for the Trump administration, along with Congress, to review and reset such policies to ensure appropriate intelligence capabilities are in place and adequate to protect America from foreign threats as well as to ensure of the most basic civil liberties and privacy, particularly from political shenanigans and deliberate political retribution by U.S. government officials as we have seen by the Obama administration.