Politicians know that the CIA sets its own data collection rules. Here’s how it is allowed to do so
Two US senators recently attempted to increase transparency about intelligence harvesting by Central Intelligence Agency. This involves the “incidental” collection of US citizens’ personal information, opens the door to an Orwellian universe of doublespeak that threatens the very fabric of American democracy.
The whole scenario reminds me of a famous scene in the movie ‘Casablanca’. Captain Louis Renault, a French police officer in Nazi-occupied French Morocco, is instructed to shut down ‘Rick’s Café Americain’, operated by an American expatriate, Rick Blaine. Pretext is that of the “discovery”Renault claims Rick runs an illegal casino. “I’m shocked, shocked to find that gambling is going on in here!” Renault exclaims. Renault exclaims, and the croupier gives him some cash. “Your winnings, sir.”Renault takes the cash, and replies “Oh, thank you very much.”
Sens. Ron Wyden (D.Oregon) and Martin Heinrich, (D.New Mexico), issued a statement on February 10 calling for more transparency from the CIA in relation to a secret bulk collecting program that was conducted under Executive Order 12333. Senators were enforcing the declassification a document they sent to CIA Director William Burns, and Director of National Intelligence Avril Haines on April 13, 2013. This letter requested that the CIA provide more transparency regarding this secret bulk collection program.
Wyden as Heinrich express their shock at this program’s existence in a letter. Heinrich said that they had no idea. “operated entirely outside the statutory framework that Congress and the public believe govern this collection, and without any … judicial, congressional or even executive oversight.” Wyden, Heinrich and others have accused the CIA in a rogue operation of operating outside the legal framework and oversight required of intelligence operations by politicians.
While the specific activities Wyden and Heinrich are concerned with have been redacted from the letter, the CIA, by releasing a tranche of declassified documents in response to the senators’ request, has provided significant clues as to what the data collected consists of: “Information storage media, raw intercepts, personal property, or information derived therefrom”CIA was provided with these documents “entities of cooperating foreign governments.”
These documents are a reminder that human intelligence collection was a task assigned by Executive Order 12333 to the agency, which was originally issued under President Ronald Reagan and updated recently under Barack Obama. Indeed, Section 309 of the Intelligence Authorization Act of 2015 details the “procedures for the retention of incidentally acquired communication” under EO 12333.
Wyden, who was elected senator in 1996, has served as a select committee member since the beginning of 2001. Heinrich was elected senator in 2013. He was also assigned to the committee the same year. Each voted against the 2015 Intelligence Authorization Act. They were both concerned by the scope of collection and lack of safeguards that would protect constitutional rights of Americans who are involved in such activities. They were both aware of EO12333 but also the particular legislation that allowed such collection to be legalized. Their collective outrage today has the same credibility as Captain Renault’s shock at the existence of gambling in Rick’s Café.
The truth of the matter is that as select committee members, Wyden has limited access to information about US intelligence programs. This includes those that they support. However, Wyden’s heart is in the right place – that much was evident in his treatment of former Director of National Intelligence James Clapper during questioning in March 2013. Wyden next asked Clapper if NSA collects. “any type of data at all on millions of Americans.”
“No, sir,” Clapper replied. “There are cases where they could inadvertently perhaps collect, but not wittingly.”
Wyden was just about to catch Clapper lying under oath in front of the US Congress. It is ostensibly an extremely serious crime. Wyden was unable to expose this lie due to the classified nature of the program in question. Only after Edward Snowden released over a million pages of highly classified intelligence reports detailing the existence of some of the very intelligence programs Clapper had denied were in place was he compelled to admit he had lied – sort of.
In a June 2013 appearance on MSNBC, Clapper said there simply was no straightforward answer to Wyden’s question. “I thought, though in retrospect, I was asked – ‘When are you going to start – stop beating your wife’ kind of question, which is meaning not – answerable necessarily by a simple yes or no. So, I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘No’.”
Clapper amended his confession in a letter addressed to Senator Dianne Feinstein (D.California). He denied that he deliberately lied to Congress but said that he did. “simply just didn’t understand the question” he was asked, claiming he was focused on intelligence collection under Section 702 of the Foreign Intelligence Surveillance Act, while Wyden’s question was about Section 215 of the Patriot Act. Wyden refuted this explanation, saying that Clapper knew the exact question and that he shared it with Clapper.
James Clapper must stop making excuses to lie to Americans about mass surveillance. For clarity, I had already asked the question. He agreed to rectify the record. He was adamant that he would not correct my mistake. https://t.co/i6jls7I9Em
— Ron Wyden (@RonWyden) March 6, 2019
The collection programs under EO 21333 were not discussed in the exchange. Clapper and Wyden did not make any mention of this program. Despite this, documents released by American Civil Liberties Union in 2014 show that both were aware that the vast majority of data collected by US intelligence communities and containing information about US citizens was made under EO 21333. “The NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 21333,” one document noted. One document stated that EO 12333 was another. “is the primary source of [the] NSA’s foreign intelligence gathering authority.”
EO 12333 was not mentioned by Wyden nor Clapper. This cannot be explained simply because they were unaware of the matter. Indeed, controversy over EO12333 and potential threat it presented to the CIA’s ability spy on US citizens became a subject of heated public discussion shortly after its 1981 publication. An article from 1985 in Cornell Law Review’s June 5, 1985 issue entitled ‘Executive Order 12333: Unleashing the CIA violates the Leash Law’,Declared that “[t]he Order allows the CIA … to direct domestic counterintelligence, foreign intelligence, covert operations, and law enforcement activity against United States citizens,”They argued for its immediate repeal.
In 1985, it was impossible to imagine how digital communication would impact every part of our lives. The fact that the CIA conducts intelligence sharing relationships with agencies of foreign governments should come as a surprise to no one – that’s its mission. It shouldn’t surprise anyone that the CIA maintains relationships with agencies of foreign governments which allow for large quantities digital communications to be transferred to the CIA for further analysis. This is the CIA’s job.
What should disturb – even disgust – every American is that the CIA is using these activities, all of which are conducted under the authority of EO 12333, as a ‘backdoor’ for US law enforcement to collect information on American citizens that it would otherwise be prohibited from doing so because of constitutional constraint. Of course, the CIA argues against this. According to documents that were released by its Office of Privacy and Civil Liberties in 2017, the CIA stated this. “The CIA complies with Executive Order 12333’s prohibition against conducting electronic surveillance in the United States, but may in the course of its authorized intelligence activities acquire electronic communications through other means.”
The following is a reference to “incidentally”Acquisition “information storage media, raw intercepts, personal property, or information derived therefrom”The CIA gets from foreign collaborators.
Next, the CIA explains how it operates. “collection, retention, and dissemination of information concerning United States persons”Respects both law and the restrictions placed by the attorney General.
Problem is, US intelligence uses words such as “collection” “retention”The meaning of “intelligence collection” may be very different for practitioners than it is for the average American citizen. James Clapper alluded to this in his June 2013 MSNBC interview when he noted that, when it came to the issue of “intelligence collection,” “[w]hat I was thinking of is looking at the Dewey Decimal numbers – of those books in that metaphorical library – to me, collection of US persons’ data would mean taking the book off the shelf and opening it up and reading it.”
Clapper is like every US intelligence agent. He was trained to work in an environment where “it is necessary to stop first and adjust your vocabulary,”As a US intelligence training manual. “The terms and words used in [regulations]These words have specific meanings. It is easy to be misled by the common or generic definition of one word.
“For example, the ‘collection of information’ is defined in the Dictionary of the United States Army Terms as: ‘The process of gathering information for all available sources and agencies’.However, the purpose of this article is to [the regulations], information is ‘collected’… only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties … (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information … [t]Therefore, the mere receipt of information that is not essential does not mean there has been a violation [regulations].”
The CIA is therefore a not “collecting”Intelligence when it gets data from US intelligence agencies. This is the only way it can be identified. “collects”Intelligence when the data can be accessed by a CIA analyst.
The term “Term” is also used. “retention”This is more than simply retaining data in files. “[I]t is retention plus retrievability.”The regulation states that “the term retention as used in this procedure, refers only to the maintenance of information about United States persons which can be retrieved by reference to the person’s name or other identifying data.”
The CIA is, in short, a can-do agency. “collect” “retain”Information on US citizens, if the search query does not include names, phone numbers or any other identifying information.
This isn’t simply a matter of ‘inside baseball’, playing semantic games with various legal authorities and definitions. There are real-world implications involving the fundamental issue of how “rule of law”Functions in democracy. “There’s a key difference,”In 2014, the ACLU issued a warning. “between EO 12333 and the two main legal authorities that have been the focus of the public debate – Section 215 of the Patriot Act and the FISA Amendments Act, which the government relies on to justify the bulk collection of Americans’ phone records and the PRISM program. Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts.”
Reread those words.. “No oversight from Congress or the courts.”The US citizens should trust that the CIA will be able to control its actions on its own. These terms are unacceptable, particularly from an organisation like the CIA, which has a track record of lying when it comes down to truth telling (ex-CIA Director Mike Pompeo stated in April 2019). “I was the CIA director. We stole, we lied and we cheated. We had entire training courses. It reminds you of the glory of the American experiment”).
Ronald Reagan was known to have used a Russian proverb. “Trust, but verify,” when speaking of the necessity of adequate verification measures when it came to arms control. The Soviet Union had a standard that was acceptable, so it is fair to expect the same for the CIA. Otherwise, we will continue to live in a world where our elected officials continue to be shocked to discover that there is gambling taking place in Rick’s Café, all the while pocketing the profits of such illicit activity.
These opinions, statements and thoughts are the sole opinion of the author. They do not necessarily reflect those made by RT.
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