Obama’s Speech, Privacy Protections, and Bulk Data

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January 18, 2014 | Posted in 4th Amendment, 9/11, E.O. 12333, Leaks, PPD-28, Snowden, U.S. Code Title 10, U.S. Code Title 50 | By

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As I’m sure you’re aware, President Obama gave a speech Friday to describe the ‘reforms’ he was directing NSA to implement to restore the American public’s confidence in NSA’s activities, and reassure the citizens of our foreign partners and allies that NSA’s capabilities were not being used against them.

These confidence building measures (I won’t call them reforms again) were well thought out, and articulated well.  Based on the news reports after the President’s speech, many commentators, pundits, politicians, and newspaper editors believe the President outlined some good ‘first steps’ but did not believe he went far enough.  It seems to me that Obama the President, as opposed to Obama the Candidate for President, has a much firmer grasp and understanding now, not just about what the U.S. Intelligence Community is capable of doing, and under which legal and other oversight authorities they do it, but also the extreme value of their intelligence products in the maintenance of national security, the development of foreign policy, and the conduct of diplomacy.  He also has a great appreciation and respect for the hard work and sacrifices of the intelligence professionals at NSA (none of the NSA’s leaders are political appointees) and throughout the intelligence community.


Let me highlight some of the lines from his speech and talk about them a little.

“…the folks at NSA and other intelligence agencies are our neighbors. They’re our friends and family.”  – Yes they are.  They are civilian employees and members of the United States military who have sworn their lives to defend our nation.  They are also people just like you and I, and they have taken the extra step of surrendering some of their personal privacy for the protection of their fellow citizens by permitting the government to conduct background checks to be sure they are people of good character.  The aren’t required to be perfect people, just people of good character, as are the majority of our fellow citizens.  Friends and colleagues were interviewed and vouched for them.  They were looked at to determine if they had criminal pasts or any associations with any foreign government or groups advocating the violent overthrow of the U.S. government.  Their citizenship, places of residence, and education were all verified.  For senior leaders, they have also exposed their personal financial situation to examination to be sure undue monetary influences, foreign or domestic were not present.  All of them are strapped to a polygraph machine on a recurring basis so their suitability for a position of trust could be confirmed.  How many of you would allow that kind of intrusive look at your lives?

“If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy.”  &  “…revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.” –  These two items speak to Mr. Snowden’s alleged criminal activities.  If you are hoping Mr. Snowden will be welcomed home a hero, or should be given credit for fomenting the debate in this country about personal privacy, I suggest you reconsider.   The President is obviously unimpressed with his actions, as are all of the Senators and Representatives I’ve heard speak on the issue.  Congressmen Rogers and Ruppersberger, the Chair and Minority Leader of the House Permanent Select Committee on Intelligence, both spoke last week about the serious damage Mr. Snowden has done to U.S. national security after reading the Defense Department’s initial damage assessment.  According to them, that assessment spoke to the tens of thousands of documents related to military operations and activities across all the services taken by Mr. Snowden and leaked to the media as well.  Congressman Rogers has also stated previously that Al-Qaeda affiliated terrorist organizations are changing their communications methods as a result of the leaks.  If you know someone who is, or have a family member serving in the armed forces at home or abroad, Mr. Snowden didn’t do them any favors.

“…nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”  &  “…the men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people.”  – These two statements clearly affirm that NSA is not a ‘rogue agency’ as some media outlets would prefer to characterize it, ‘spying on Americans’.  Moreover, members of both parties on the intelligence and judiciary committees in both houses of congress have taken great care to laud the professionalism and sacrifices of the men and women in the intelligence community during the hearings that have been held since the unauthorized disclosures began in June.  Additionally, since the declassification of USSID 18, we can clearly see that U.S. person privacy protections were in place since at least as early as 1993 within NSA, something Mr. Snowden, in his egotistical rush to steal what he could and run to China and then Russia (where privacy protections are so obviously the norm), chose to ignore.


The changes to bulk data collection the President proposes are modest, and the President has called on Congress to fulfill its role as the legislative authority.  The President obviously feels that the bulk data collection of telephone call records under FISA 215 is a tool he wants the intelligence community to have, but given the public’s concerns about the privacy implications, he has ordered that another FISA Court warrant will be needed to query the collected records, and that the Attorney General and Director of National Intelligence report back to him on a way to have the data held outside of the government, but still available.  (I’m sure they will examine the issue as the President has directed, but the phone companies don’t want to hold it, so we’ll need to see what happens.)   Also, the NSA will not be able to retrieve records from a query beyond two ‘hops’ from the seed telephone number.  This will limit the number of returned call records, and reduce the number of U.S. person phone records reviewed by a professional analyst.

Congress will now need to perform its role in debating and amending as they see fit the FISA law, and the composition/functioning of the FISA Court based not just on what they have heard in open testimony, but also what the intelligence community and NSA has shown them in a classified setting, where I suspect the individual member’s opinions are less influenced by the proximity of reporters and video cameras, and more on practical application of law and the real threats and adversaries in the world.

The President chose not to address many of the remaining review group’s recommendations, ordering some for study, and ignoring (at least in the public speech) others.  For example, he did not address the personnel and computer security portions of the review group’s report, which will undoubtedly be actioned within the intelligence agencies, under the watchful eye of the DNI and Congress.  The detailed specifics will likely be left to classified briefings to Congress to ensure our adversaries don’t learn too much about the internal security mechanisms of our intelligence agencies.  They’ve obviously already learned more operational details than they could have ever hoped for.


The last item to address then is the extension of privacy protections to foreign (i.e. non-U.S.) persons.  Let me say at the outset that in all my professional experience, which is consistent with the testimony heard before Congress over the last eight months and the statements the President has made:  the U.S. Intelligence Community is tasked, and therefore interested only in: collecting, analyzing, and disseminating foreign intelligence – just like every other nation on the face of the planet.

During all that testimony, and all those speeches, no one in the U.S. intelligence community ever stated that they cared about or were tasked to gather information on the general public of any country.  Moreover, given Congressman Rogers’ assertion during a hearing last fall that ‘the committee has access to all the classified tasking and resulting intelligence reports’, I would expect any number of members to object to any collection effort outside of valid foreign intelligence tasking, if it were in fact occurring.

The U.S. Intelligence Community performs their foreign intelligence mission based on requirements received by the President and the Combatant Commanders around the world.  While stated plainly in Executive Order 12333, President Obama’s Presidential Policy Directive PPD-28 re-affirms that and formalizes the ‘rules of the road’ for intelligence collection in the 21st Century.  With PPD-28, those rules now include a formal declaration and direction to the U.S. intelligence community to protect foreign citizen’s privacy as they would a U.S. person’s, and it is direction that I’m sure, based on my direct knowledge of the professionalism of the 100,000+ member intelligence community, will be adhered to.

In doing so, the professionals in the U.S. Intelligence Community (of which NSA is a large part) will be doing exactly what it has been doing since 9/11, conducting its operations within the law as it exists, under the oversight regime Congress has put in place, based on the direction and prioritization given to it by the President.  Which, by the way, is not a set of circumstances you will find in Russia or China.

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A New Year’s Prediction

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January 2, 2014 | Posted in 4th Amendment, 9/11, E.O. 12333, FISA, FISC, Intelligence, NSA | By

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President Obama is currently enjoying the sun, sand, water, and golfing to be found on his annual Hawaiian vacation.  I begrudge no President his time off.  The duties and responsibilities of the office are such that regular time off is a must.

Once he comes back from his vacation, he’ll be getting ready to act on the recommendations of the Presidential Review Group on Intelligence Capabilities and Technologies.  Mr. Michael Moore recently posted an Op-Ed in the Washington Post correcting the record on the Group’s recommendations as they were reported in many newspapers and websites.

Briefly, I think that when the President gives his speech later this month, he will announce, consistent with the current provisions of Executive Order 12333, DoD Regulation 5240.1-R, and USSID 18 that already provide U.S. person privacy protections:

  • Changes to the process the National Security Council uses to establish, vet, and levy intelligence tasking on NSA.
  • Creation of the position of Special Assistant to the President for Privacy, and improvements/changes to the charter and purview of the Privacy & Civil Liberties Oversight Board
  • The FISA 215 (Phone Records Collection Program) & FISA 702 programs will continue
  • NSA will continue to hold the FISA 215 & 702 records, but do so only for two to three years vice five (the phone companies want to charge $50 million a year – EACH to hold the FISA 215 records)
  • Additional transparency will be introduced by means of providing Congress additional details in a classified setting, and providing more general information to the public in unclassified form (e.g. counts of currently operative FISA warrants in use by NSA, number of FISA 215 phone numbers turned over to the FBI, etc.)
  • Request enabling legislation from Congress to:
    • Add a ‘Civil Liberties Counsel’ to participate in the proceedings of the FISA Court
    • Immediate improvements to the security clearance vetting processes, changing the ‘need-to-share’ culture post 9/11 back to a ‘need-to-know’ culture (call it work related if you like, that’s what it will be)
  • Direct immediate improvements to computer network security throughout the Intelligence Community to reduce and eliminate the potential for more Snowden-like actions

It will be two or three weeks, but I look forward to seeing how closely the President comes to meeting my predictions.



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Ten Years Since 9/11, & the Years to Come

September 10, 2011 | Posted in 9/11, Al-Qaeda, Flight 93, Ground Zero, Hijackers, Terrorism | By

NYC SkylineSunday marks the passing of a decade since 19 hijackers took control of four commercial airliners and used them as guided missiles aimed at our nation’s government, military, and economy. Those 19 Al-Qaeda hijackers killed nearly 3,000 people, destroyed a building at the heart of our nation’s economic center, and severely damaged our nation’s military headquarters. Were it not for the bravery and courage of ordinary American’s on Flight 93, the hijackers may have struck the Capitol or the White House, injuring and killing hundreds more.

We all remember where we were when we first saw, or heard about the attacks. For a brief time afterwards, we ceased being people of multiple outlooks on life, diverse political views, differing races or religious faiths. We simply became Americans. We all flew our nation’s flag in our communities and in our hearts in the immediate aftermath, and in the weeks that followed.

The brave men and women in the ranks of our first responders fought back in the first hours after the Towers fell, and while the Pentagon and a crater in a Pennsylvania field burned. Then we sent our intelligence services and armed forces into battle in Afghanistan, Iraq, the Horn of Africa, and the Philippines to hunt down the members of Al-Qaeda responsible for the 9/11 attacks and attempt to halt the spread of a terrorist organization that uses a corrupted interpretation of Islam as its rallying cry. Our service members and intelligence officers went where they were ordered to go, and pursued our nation’s enemies, even if the justification for the war seemed less than completely understood or fully justified in the minds of our nation’s leaders or people. In spite of the terrible hardships of life on foreign battlefields, loss of limbs and of friends and comrades to death, broken marriages and failed relationships, they have kept faith with our nation and held to their oaths. They have continued the fight over these past ten years, and we have stood behind them, and we will continue to do so, so long as they are called to serve.

Ten years later – We have debated and will continue to debate the conduct of what the Bush Administration called ‘The War on Terror’, and what the Obama Administration now calls ‘The War on Al-Qaeda’. As a nation, we learned and will continue to learn from this debate. Challenges to the conduct of intelligence operations like the ‘warrantless wiretapping’ program and the detainment of terrorists and insurgents at Camp Delta were brought to the courts and litigated. The speeches made in Congress, the testimony before various committees, the resounding sound of public opinion, and the resultant new legislation. Legislation like the USA Patriot Act, passed and re-authorized the twice to improve and expand law enforcement and intelligence community capabilities under the law.

Ten years later – Executive Order 12333 has been amended, clarifying authorities and strengthening our nation’s intelligence services, the ‘warrantless wiretapping’ program continues under more rigorous oversight and under the rule of law affirmed in an August 2008 ruling by the U.S. Foreign Intelligence Surveillance Court of Review. Closer and more collaborative relationships were forged within the intelligence community and between the intelligence community, law enforcement, and the military, and the National Counter Terrorism Center has been created to fuse and widely disseminate within the government all terrorism related intelligence and operational data.

Ten years later – Camp Delta remains open, and while President Obama has attempted to bring some of the detainees to the U.S. for trial within the criminal court system, the U.S. Congress has prohibited any appropriated funding from being used for such purposes. President Obama has since given permission for military trials to resume for the terror suspects, and signed an executive order to formalize the existing system of indefinite detention.

Ten years later – After being wrested from Taliban and Al-Qaeda control, Afghanistan has taken the first uncertain and hesitant steps towards a democratic form of government, but internal tribal loyalties hampering nationalism, dogged Taliban insurgents in the mountains dreaming of a strict Islamist State reborn, and an America strained, but unbeaten from ten years of fighting call into question Afghanistan’s future.

Ten years later – Osama bin Laden is dead. Buried at sea, the best unmarked grave we could find, he was laid to rest after the prayers of the faith he had defiled were said over his body by an American Muslim. He will not be a martyr to the evil cause he cherished, to those who choose hate and intolerance over peace and respect for others in spite of a different opinion or belief. He has paid for the pain and suffering he brought to our nation and others, and surely Allah has explained to him the depth of his mistakes in no uncertain terms.

In the years to come, the healthy debate in our nation will continue. We will continue to refine our approach to the problem of religious extremism used as an excuse to condone violence, while doing all we can to remain true to America’s ideals and beliefs of freedom and tolerance for other races, genders, faiths, and political viewpoints.

In the years to come, Al-Qaeda, its offshoots, and organizations like it will continue to exist in one form or another. Others will join the organization Bin Laden started, or create some splinter group fighting against America’s actions overseas or policies. They will commit acts of terror to further their cause and attempt to change America’s foreign policy, perceived or real, no matter which party holds the majority in Congress or occupies the White House. American citizens will be hurt and killed at home and abroad from time-to-time, and our intelligence, military and law enforcement organizations will do all they can to learn about these plots and then arrest, capture, or kill the plotters.

In the years to come, America will continue its fight against those who chose warfare and terror to attempt to gain political power or intimidate others. That fight will require more than just finding, fixing, tracking, and killing the leaders of these organizations. It will take continued efforts to inhibit radicalization in wherever and however it might occur, in order to break the generational cycle that breeds new radicals of any stripe. It will take several more decades, and it will cost both sides many young lives and billions in unrealized economic productivity; military, diplomatic, and humanitarian efforts. Fortunately we fought a long Cold War once, and while the reasons were different, the lives lost and billions spent were not. We won that long Cold War with the help of our friends and allies.

We and our allies will win this long war too.

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