By Trevor Timm | EFF | August 14, 2013
It’s been two months since President Barack Obama first said that he welcomes a debate about NSA surveillance, which he once again reiterated last week at his press conference. Unfortunately, it’s very hard to have a real debate about a subject when the administration constantly and intentionally misleads Americans about the NSA’s capabilities and supposed legal powers.
Infamously, the Director of National Intelligence (DNI) James Clapper was forced to apologize for lying to Congress about whether the government was collecting information on millions of Americans, but that was merely the tip of the administration’s iceberg of mendacity and misdirection. At this point, it seems nothing the government says about the NSA can be taken at face value.
NSA’s Bizarro Dictionary
The latest example comes from the New York Times last week, which reported that the NSA is “searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country.” Despite the fact that millions of people’s communications are collected in bulk, the NSA says that this isn’t “bulk collection.” From the NYT story:
The senior intelligence official argued, however, that it would be inaccurate to portray the N.S.A. as engaging in “bulk collection” of the contents of communications. “ ‘Bulk collection’ is when we collect and retain for some period of time that lets us do retrospective analysis,” the official said. “In this case, we do not do that, so we do not consider this ‘bulk collection.’ ”
In other words, because the NSA does some sort of initial content searches of the bulk communications that they collect, perhaps using very fast computers, then only keep some unknown subset of that greater bulk for a later date, no “bulk collection” occurs. This is ridiculous. No matter how you slice it, the NSA is mass collecting and searching millions of American communications without a warrant.
Keep in mind that officials have previously said communications aren’t even “collected” when they are intercepted and stored in a database for long periods of time, much less “bulk collected.” Orwell would be impressed.
We’ve long documented the NSA’s unbelievable definitions of ordinary words like “collect,” “surveillance,” and “communications,” publishing a whole page of them last year. The ACLU’s Jameel Jaffer has added to the NSA’s bizarro dictionary, with words like “incidental,” “minimize” and even “no.”
The fact is, no one should have to read and parse a sentence a half-dozen times, plus have access to a secret government dictionary, in order to decipher its meaning. Yet, that’s apparently how the administration wants this debate to proceed.
Question Misdirection
When government officials can’t directly answer a question with a secret definition, officials will often answer a different question than they were asked. For example, if asked, “can you read Americans’ email without a warrant,” officials will answer: “we cannot target Americans’ email without a warrant.” As we explained last week, the NSA’s warped definition of word “target” is full of so many holes that it allows the NSA to reach into untold number of Americans’ emails, some which can be purely domestic.
“Under this Program” Dodge
Another tried and true technique in the NSA obfuscation playbook is to deny it does one invasive thing or another “under this program.” When it’s later revealed the NSA actually does do the spying it said it didn’t, officials can claim it was just part of another program not referred to in the initial answer.
This was the Bush administration’s strategy for the “Terrorist Surveillance Program”: The term “TSP” ended up being a meaningless label, created by administration officials after the much larger warrantless surveillance program was exposed by the New York Times in 2005. They used it to give the misleading impression that the NSA’s spying program was narrow and aimed only at intercepting the communications of terrorists. In fact, the larger program affected all Americans.
Now we’re likely seeing it as part of the telephone records collection debate when administration officials repeat over and over that they aren’t collecting location data “under this program.” Sen. Ron Wyden has strongly suggested this might not be the whole story.
From Downright False to Impossible to Understand
Some statements by government officials don’t seem to have any explanation.
The night before the New York Times story on “vast” warrantless searches of Americans’ communications came out, Obama told Jay Leno on The Tonight Show, “We don’t have a domestic spying program.” Mr. President, what do you call collecting the phone records of all Americans and searching any email sent by an American that happens to cross the border? That sounds a lot like a domestic spying program.
Similarly, Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, recently 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.” Leaked documents and, honestly, the FISA Amendments Act itself show Feinstein’s statement simply isn’t true—if Americans are talking to a “target” their telephone calls are listened to and their emails can be read without a warrant (and that doesn’t even include the searching of Americans’ communications that are “about a target”). All of those searches are done without a court order, much less a warrant based on probable cause.
Previously, President Obama has called the inherently secret FISA court “transparent,” to the befuddlement of just about everyone. A court that has issued tens of thousands of secret orders, while creating a secret body of privacy and Fourth Amendment law, is not “transparent” by any measure.
Just last week, the president claimed he would appoint an “independent” board of “outside” observers to review the surveillance programs, only to put DNI Clapper—the same man who lied to Congress and the public about the scope of the program—in charge of picking the members. The White House has since backtracked, but the DNI still will report the group’s findings to the President.
These are not all of the misleading statements, merely just a few that stick out at the moment. If the president is serious about transparency, he can start by declassifying the dictionary his administration is using to debate, and start speaking straight to the American public. A one-sided presentation of the facts, without straightforward answers to the public’s questions, isn’t really a debate at all.
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