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NSA: Government Gets Subject Changed Back To The Messenger — Or Does It?

On June 14 the US government secured a criminal indictment against Edward Snowden for what we later learned were one charge of stealing government property and two espionage-related counts of unauthorized disclosure of information. The indictment was sealed, but it was unsealed on June 21, a week later. Why?

My guess would be that it’s because on the day before, June 20, the Guardian released two more documents supplied by Snowden: two 2009 memos from Attorney General Eric Holder which nominally specified that the incidence of “US persons” being caught up in NSA surveillance was to be “minimized,” but which in practice was so riddled with exceptions that they “swallowed the rule,” as an ACLU attorney would later put it, thus making them the story.

And on the morning of the 21st major US news outlets were starting to pick up this story, reporting it in a fairly pointed way (Slate even entitled its piece “Latest NSA Leak Shows How Obama Misled Public on Surveillance of Americans,” since he had assured us that “no-one is tapping your phone,” or “reading your e-mail”). What better time to unseal the indictment and get the focus back on the messenger instead of his message?

If so, the maneuver might be said to have worked, at least for the moment. The media have been all over the story of Snowden’s indictment today, from the New York Times to Politico to Foxnews (which plays up the bipartisan support it says exists for the indictment in Congress). Meanwhile, I am unable to find any more coverage of the two documents the Guardian released on Thursday. It released yet another document yesterday, a 2010 FISA judge’s ruling that the procedures were constitutional, and I wrote about it yesterday, but I haven’t seen anyone else do so.

Actually, those two memos may not describe the procedures NSA currently uses, anyway. A little known fact is that, according to the Electronic Frontier Foundation (h/t marym in IL), in October 2011 the FISC court found the procedures in use at that time to be constitutionally deficient, although we don’t know the details because the ruling is secret. A July 2012 communication (h/t marym in IL) from the office of Director of National Intelligence James (“Least Untruthful”) Clapper suggests that the procedures have ben made more consistent with the Fourth Amendment, but who knows what that means? (It may be that a due process violation or two has been removed from one portion of the procedures, while some provision deemed to risk letting terrorists go undetected in another part has been beefed up.)

But lest the government get too complacent, more of the message is coming out. Yesterday the Guardian also released information to the effect that the UK equivalent of the NSA, the GCHQ, has been tapping into fiber-optic cables that carry a lot of the world’s communications and sharing it with NSA, while today Hong Kong’s South China Morning Post writes about NSA’s extensive hacking of Beijing’s respected Tsinghua University’s communications, and of Chinese mobile phone companies. (wendydavis has posts giving details in both cases, here and here, respectively.) The GCHQ story is getting a fair amount of media exposure; for example, CNN TV has been running it in its crawl at the bottom of the screen all day.

In passing, here is a somewhat peripheral, yet relevant story. Remember all those cases where the FBI “foiled” a terrorist plot that it had created, by recruiting a naive Middle Eastern person to plan to blow up something, and then supplying him with fake explosives, and arresting him when he tried to set them off?

Well, it turns out that at least one such case made use of that NSA metadata we’ve heard about, according to no less an authority than Senator Diane Feinstein (D-CA), the chair of the Senate Intelligence Committee (who was using the “successful” case to argue for renewal of the relevant laws), although the government now denies that it used any more than traditional individual court orders in the particular case (because it does not want to talk about the new procedures in open court). Details here. The trial is to take place in January, and it will be interesting to see if the defense subpoenas DiFi as a witness.

Stay tuned.

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E. F. Beall

E. F. Beall