December 20, 2015 | Posted in Air Force, Author, Blog, Classified, Classified Information, Congress, Cyber attack, Department of Defense, E.O. 12333, FISA, Intelligence, Law Enforcement, Leaks, NSA, PPD-28, President Obama, Privacy, Snowden, U.S. Code Title 10, U.S. Code Title 50, Writing | By Tom Wither
I hope you’ve had a great summer and fall, and are enjoying the holiday season. I’d like to extend my thanks for being fans of my work, and wish you happy holidays and a bright new year.
I’ve been busy crafting my next novel, a project I’ve named ROGUE SENTINEL, and I will finish the manuscript shortly after the New Year. ROGUE SENTINEL will see Shane Mathews take on a solo mission to Jordan to find and capture an Islamic State mission planner known only as ‘Al-Amriki’ – The American.
Up next, I’ll be resuming work on SWIFT JUSTICE, the third and concluding novel of the ‘Aziz Trilogy’ that started with THE INHERITOR and AUTUMN FIRE, with main characters Shane Mathews and Emily Thompson.
During the year I’ve written a few Op-Eds on current issues that have been published in the Baltimore Sun and in The Hill’s Congress Blog. Here’s a list so you can look at them if you’re interested.
‘The NSA data collection program isn’t criminal; ending it is’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-nsa-data-20151203-story.html
‘Open Letter from a cyber terrorist’ – http://thehill.com/blogs/congress-blog/homeland-security/255370-open-letter-from-a-cyber-terrorist
‘Stand with our watchers’ – http://thehill.com/blogs/congress-blog/homeland-security/261237-stand-with-our-watchers
‘Access to encrypted communication, a balancing act’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-encryption-data-20151001-story.html
‘Clinton E-mails: Who else was involved?’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-clinton-emails-20150908-story.html
‘The country is vulnerable without CISPA’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-cispa-redux-20150209-story.html
Thanks again for being fans of my stories, and feel free make them presents for the fiction reader on your holiday list – they can be purchased from Amazon or Barnes & Nobel as e-books or hardcopies in trade paperback. You can even contact me via firstname.lastname@example.org for a signed copy if you like.
Take care and Happy Holidays!
As the new Congress comes into session in January, it will have many issues to address. One of the most important will be changes and improvements to the Foreign Intelligence Surveillance Act, commonly known as FISA. Some of its Patriot Act created provisions, like the better known Section 215 used to collect bulk phone records, and the less well known Section 702 authority compelling telecommunication providers to provide the government non-U.S. person communications have been hotly debated in Congressional committee hearings and by the general public during 2014.
The Senate recently failed to advance ‘USA Freedom Act’ to change FISA, ensuring that the debate will be rekindled in the next Congress early in 2015. Hopefully, the next version of the bill will address some of the concerns that Judge John Bates (a federal district judge who has served on the FISA Court) described – laid out about the concerns the FISA Court might have, and challenges it might face in its processes, if that version of the USA Freedom Act had become law.
Congress will work its will in passing a final set of changes to FISA from these bills, enhancing existing privacy protections in light of the rapid advances in modern communications and the public outcry over government access and storage of telephone and internet activity by ordinary citizens.
Once signed into law, I am certain the professionals within NSA, both military and civilian, will comply with the changes to the FISA statute, whatever their final form. That compliance is not only an integral part of their oaths to the Constitution, it is also completely consistent with the professional attitudes of the many men and women at NSA I have worked with over the years.
However, in light of this long debate, three ‘lessons learned’ are abundantly clear in this era of rapidly evolving modern telecommunications and the ‘internet of things’:
The public needs a better understanding of exactly what information they surrender when they use communications technology. This is a difficult goal to attain given the technological complexity of modern personal communications devices and the limited time or desire someone may have to delve into the privacy related issues attendant to the device or service they use. Do you know what personal information the operating system on your mobile device stores when you use an application? During the INFOSEC 2014 conference in Orlando earlier this year, an iPhone demonstration proved that while the app you use may keep your personal information secure, the phone’s underlying operating system may be storing much of it in a very unsecure manner.
Next, Congress and local legislatures need to play a more active role in the oversight of law enforcement and intelligence activities where they involve modern telecommunications technology. Law enforcement and intelligence organizations operate within the laws they are given, and the law must keep pace with advances in technology. As such, laws like FISA must continue to have yearly ‘sunset’ clauses built into them to force legislatures to engage regularly and keep pace with the leaps forward in technology. Police and intelligence services will leverage new technologies to conduct their missions, and they need laws adopted at a quicker pace, not just to constrain their actions within our Constitutional principles, but also properly enable them to bring criminals to trial or monitor agents and actions of a foreign adversary.
Lastly, a level of increased transparency is required. The days of ‘No Such Agency’, borne from the Cold War era, are long over, and a new balance needs to be struck. I believe law enforcement and intelligence organs must have and foster public trust, but intelligence organs cannot operate effectively if operational means and methods are exposed to the whole of the American public, and therefore, our adversaries. Adversaries would exploit such knowledge to kill our citizens, damage or destroy our critical national infrastructure, or win in battles with our military. We have begun to see the first steps towards increased transparency with the release of unclassified versions of FISA Court opinions and reports of aggregate counts of FISA warrants and NSLs. Among other things, greater transparency can be achieved by: providing unclassified titles for the closed door briefings to intelligence oversight committees; including in the aggregate counts of FISA warrants actively in use by each government agency; and releasing unclassified versions of all damage assessments produced as a result of unauthorized leaks of classified information. The government cannot claim damage due to leaks, without backing the claim in a credible manner in a public forum – something I believe can be done without exposing sources and methods or risking lives.
U.S. intelligence and law enforcement agencies exist and operate from the bedrock of public confidence. More transparency, consistent with protecting sources, methods, operational intelligence, and our troops in the field, is achievable, and since the Snowden leaks and the misinformation that has stemmed from them, something I believe is now mandatory.
Tom Wither is the author of the military/intelligence thrillers: “The Inheritor” (Turner Publishing, June 2014) and “Autumn Fire” (Turner Publishing, September 2014). He is also a 25 year veteran of the intelligence community. The views and opinions expressed are his own and are not those of any organization or element of the intelligence community or Department of Defense. His email is Tom@TomWither.com.
July 27, 2014 | Posted in 4th Amendment, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, PPD-28, Privacy, Snowden, U.S. Code Title 50 | By Tom Wither
Over the last year, some media outlets have used the leaked classified material from Edward Snowden to write news stories that imply NSA has either: allegedly violated the privacy rights of ‘every American’ or exceeded its authorities. In every one of these stories, what is usually missing is a SIGINT professional’s level of understanding on the part of the journalist, admittedly difficult to gain when SIGINT operational training is classified.
Signals intelligence, referred to as SIGINT, is both technically complex due to the nature of modern communications technologies, and legally complex, due to the heavy legal and Constitutional burdens placed on the professionals at NSA who conduct it.
These professionals spend months and oftentimes years during a career training in the operational, technical, and legal aspects of conducting SIGINT – which includes training in the protection of U.S. person privacy.
For example, a recent Washington Post article on July 11th, ‘How 160,000 intercepted communications led to our latest NSA story’; written to amplify its July 5th story ‘Non-targets far outnumber targets in NSA data collection’, states that the rules for ‘minimization’ of U.S. person information are ‘opaque’ – in fact, they are not opaque at all.
The minimization rules come in two forms, both of which are written in black and white for anyone to read, now that they have been declassified. They are contained in the Foreign Intelligence Surveillance Court’s minimization instructions as part of its numerous court rulings, and United States Signals Intelligence Directive 18 (USSID 18). USSIDs provide implementation guidance and direction to NSA’s civilian and military workforce, ensuring our Constitutional principles, current laws, Executive Orders, and binding court orders are implemented and enforced within the entire United States SIGINT System. For the purposes of this blog post, we’ll focus on USSID 18.
USSID 18 is titled, “Legal Compliance and U.S. Persons Minimization Procedures”, and is fifty-two pages long. Naturally, portions of many paragraphs are blanked out as part of the declassification process, but the direction in, and intent of USSID 18 are very clear, and I can tell you from my experience in the intelligence community that it is binding and followed by all SIGINT professionals.
Discussing all the limits USSID 18 places on SIGINT operations would take several blog posts worth of space, but we can look at one instance where USSID 18 applies in the Washington Post’s July 5th story.
The Post’s story states that, in the sample of surveillance files it reviewed, ‘NSA analysts masked, or “minimized,” more than 65,000 [references to U.S. citizens or residents], but the Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S. residents.’ This line is clearly meant to bolster the implication that U.S. person identities or identifiers incidentally collected under the legally authorized, and court monitored FISA Amendments Act (the Patriot Act) Section 702 program are not properly minimized.
If this element of the Post’s story is accurate, that translates to a 98.7% accuracy rate (based on (900 / 65,900) x 100) of minimization, as required under USSID 18 – an operational standard that many U.S. corporations would envy. The Post didn’t word it that way, but it is example of how the professionals at NSA take protection of U.S. person privacy seriously, rather than supporting the Post’s implication that NSA treats U.S. person data in a cavalier manner.
The Post’s explanatory piece on the 11th also expresses its concern about the volume and nature of incidental collection, the Director of National Intelligence’s assertion that it is unable to estimate how many Americans are affected, and that no outside watchdog – the Congress, courts, or the President’s Privacy and Civil Liberties Oversight Board have access to the content to judge for themselves.
The reason for this is obvious to a professional. Although the Post could traipse at will through its purported pile of 160,000 intercepts (reviewing U.S. citizen’s private information under the comforting blanket of the 1st Amendment) – the government cannot legally look through incidental collection to identify and characterize it because laws, and both executive and court orders forbid it. Laws and orders every American citizen, including those working at NSA, must obey.
At this stage of the debate, I had hoped to see stories covering how NSA adheres to law and policy to conduct their assigned foreign intelligence mission, using background interviews with NSA’s professionals and managers in a more transparent environment. Instead, we continue to see stories from some members of the media filled with a selected set of ‘facts’ provided by a man charged with theft and violations of the espionage act, filtered through well-intended, but only partially educated journalist guesswork, resulting in implications or insinuations of impropriety or illegality. There is more to the story than just what Mr. Snowden, or the journalists who support him, would have you believe.
When you get a chance, please read my Op-Ed in the Baltimore Sun.
Please feel free to contact me with your comments using the e-mail address in the tag line at the end of the piece. We live in a free society and I respect any point of view that you may have, so long as you express it in a civil manner.
Thanks to all who have already sent me comments. I’ve enjoyed reading them, and I am doing my best to respond to all of them individually. Also, I’d like to thank Tricia Bishop and the other members of the Sun’s Editorial Board who thought my Op-Ed was worth publishing.
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.
BULK DATA & THE REST OF THE REVIEW GROUP’S RECOMMENDATIONS
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.
PRIVACY PROTECTIONS FOR NON-U.S. CITIZENS
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.