Loose Canons

LOVEINT in the Air

NSA continues to play footsie with the law -- but most alarmingly as conveyed in Footnote 14. Will Congress respond?

By 8.26.13

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What do Hillary Clinton, Anthony Weiner, and the NSA have in common? More than you probably think.

The issue at bar is “LOVEINT,” the practice of some NSA employees of gathering intelligence information on their lovers, spouses, and whatever else falls under the category of people to whom they may be attached. LOVEINT is obviously illegal and the latest abuse of NSA’s authority of which we know.

And that’s where Hillary and Mr. Weenie come in. This week’s political patter is likely to be pretty much the same as last week. The media are filling our eyes and ears with endless idiotic speculation about whether Hillary is going to run in 2016 and how Weiner -- or his Twitter pseudonym, Carlos Danger -- can recover from the damage his New York mayoral campaign has suffered so far. He can’t, and who the hell cares?

Neither I nor anyone else interested in solving the problems of our nation. Which brings us back to LOVEINT.

LOVEINT, like Hillary and Weiner, are distractions. It matters that NSA employees may be violating the law by spying on their lovers. But in the grand scheme of things, it really doesn’t matter much, and while we’re talking about LOVEINT -- or Hillary or Weenie -- we’re not talking about what we need to do to fix the status quo, a phrase the Gipper translated from Latin to usefulness for us. It meant, he said, “the mess we’re in.”

As long as we indulge in thinking about these three trivialities we allow ourselves to be diverted from thinking about what really matters. It’s understandable that the diversion occurs. LOVEINT, Hillary, and Weiner are more entertaining than the realities we need to deal with every day.

Our government, such as it is, preoccupies itself with avoiding responsibility for anything. Its primary goals are self-perpetuation and risk avoidance so it does nothing that would threaten either. People are rightly disgusted with it. And they are tuning out of politics to a dangerous degree.

We can expect congressional outrage at the reports of LOVEINT shenanigans by the NSA. It’s easier to express outrage at what is probably a minuscule violation of the Foreign Intelligence Surveillance Act than it is to do the hard work of what is apparently going wrong -- badly wrong -- at NSA.

Last week, NSA’s chief compliance officer, John DeLong, told reporters about LOVEINT as well as about 3,000 other instances in which NSA gathered intelligence information -- illegally -- from communications between and among Americans located in the U.S. who have no connection to terrorism. DeLong said the non-LOVEINT incidents were unintentional, and they may well have been.

But there’s a lot more going on with NSA, or at least its Brit brother. The visit to the U.K. Guardian newspaper, during which UK’s intel folks apparently seized computer files and hard drives containing files revealed to them by leaker Edward Snowden, may prevent further publications, but the Guardian says others have the same files. If it prevents further leaks, the UK government’s actions should be praised.

Also on the good side is the UK’s detention of Guardian reporter Glenn Greenwald’s homosexual partner at Heathrow airport. The guy was apparently searched for other Snowden files. There’s no report that he’s a target of LOVEINT.

That’s about all the good news. The bad news comes in a newly disclosed opinion by U.S. District Court Judge John Bates when he was chief judge of the Foreign Intelligence Surveillance Court in 2011. It should be the foundation for some intensive congressional oversight and a better public debate on the NSA’s activities and intelligence-gathering programs.

Bates was considering applications for orders based on certifications by the Attorney General and the Director of National Intelligence -- including the FBI and NSA -- for renewal of search authorizations, apparently affecting telephone metadata that show only the length of conversations and the phone numbers involved. Included were Internet -- i.e., email and other electronic -- data and communications. The FISC denied some and approved others, finding them deficient on constitutional and statutory grounds.

The big problem comes in Footnote 14. It appears in the section of the opinion that talks about the Court’s review of NSA’s targeting and minimization procedures -- how they focus intelligence on terrorists and minimize the unintentional gathering of intelligence on innocent people -- as required by FISA. Though redacted, it’s nevertheless worth quoting at length: 

The Court is troubled that the government’s revelations regarding the NSA’s acquisitions of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of NSA’s collection programs.

In March 2009 the Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from (redacted) in the so-called “big business records” matter “ha[d] been premised on a flawed depiction of how the NSA uses [the acquired] metadata,” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated regime.” Docket (redacted). Contrary to the government’s repeated assurances, NSA had been routinely running queries of metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systematically violated that it can be fairly said that this critical element of the overall…regime has never functioned effectively.” (redacted)

This statement by the FISC is nothing short of shocking. It should be enough to focus everyone on what’s obviously gone wrong in the NSA.

I’m sure a lot of people in NSA would say that the FISA amendments of only three years ago went too far in providing protection against unwanted intrusion into private communication. That may be true, but it’s irrelevant. The law isn’t perfect, but it’s pretty clear. And when you have not one, not two, but three misrepresentations to the primary overseer of NSA’s activities, which the FISC is, you have a real problem.

One way to look at Bates’s opinion gives us some confidence that the Court has limits and is willing to enforce them on NSA, the FBI and the other agencies gathering electronic intelligence. But what has the Court done to make sure that the frequent and systematic violations of the established procedures -- which makes those violations illegal -- have been repaired? How do we know that the “critical element” of the whole NSA regime has been made to work effectively?

We don’t. And this is where Congress should come in, but probably won’t. The NSA cannot be allowed to lie to the Court, as it has done. It cannot be allowed to employ people responsible for those lies, which it does. And Congress needs to get to the business of intensive -- and classified -- oversight that this problem obviously needs.

Bates’s opinion -- at least those parts of it we’ve been allowed to see -- upholds the law. That’s the Court’s business. We should be able to see a lot more of its opinions, albeit in redacted form, to give us some assurance that the Court is doing its job and enforcing FISA against any abuses by the NSA.

It’s more amusing to speculate about Hillary and Mr. Weenie and their political futures. But to do that to the exclusion of debating and fixing the problems identified by Judge Bates is nothing short of irresponsible. It may have been Pericles who said, “Just because you do not take an interest in politics doesn't mean politics won't take an interest in you.” These days, people tune out politics at their own risk.

Photo: Wikimedia Commons

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. You can follow him on Twitter @jedbabbin.