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Documents Reveal More Details on How US Intelligence Gets Around Regulations Against Spying on US Persons

The American Civil Liberties Union posted a trove of documents obtained in their Freedom of Information Act lawsuit for information about an executive order President Ronald Reagan signed, which gives the government broad authority to engage in surveillance of international communications, including the communications of numerous Americans. One key “exemption” gives intelligence agencies the ability to get around regulations intended to protect privacy.

Executive Order 12333, according to McClatchy Newspapers, “governs” most of what the National Security Agency does, when it comes to collection of information on “Americans’ cellphone and Internet usage.”

“It is a sweeping mandate that outlines the duties and foreign intelligence collection for the nation’s 17 intelligence agencies. It is not governed by Congress, and critics say it has little privacy protection and many loopholes. What changes have been made to it have come through guidelines set by the attorney general or other documents,” described McClatchy journalist Ali Watkins.

As former State Department executive John Napier Tye wrote in a column for the Washington Post that was published in July, “I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 [EO1233] than under Section 215.” [Section 215 is the section of the PATRIOT Act that the NSA has been using to collect the phone records of Americans in bulk.]

According to ACLU staff attorney Alex Abdo, documents from the NSA, Defense Intelligence Agency (DIA) and other agencies, further demonstrate how US intelligence agencies rely on EO 12333.

“It is the primary source of NSA’s foreign intelligence gathering activity,” an “internal surveillance manual” from 2007 states.

A “Legal Facts” sheet indicates, “The majority of signals intelligence activities, which is essentially any and all surveillance of electronic communications, are conducted “solely pursuant to the authority provided” by EO 12333.

In other words, while there are provisions under the PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA) and its amendments that should be followed, intelligence agencies can conduct surveillance under EO 12333 and not have to bother with complying with the set of regulations Congress has passed. It can spy on communications and intercept information under its own designed guidelines.

A “Defense Department presentation,” which the ACLU obtained from the Defense Intelligence Agency, raises additional concerns with its list of “exemptions” that allow employees to “collect” information on US persons.

One exemption allows for the collection of information on US persons if it relates to “commercial organizations believed to have some relationship with foreign organizations or persons.” This might be referred to as the economic espionage exemption, as it makes collecting proprietary information from businesses or corporations legal.

The more significant exemption, however, is the exemption allowing for the collection of information on “potential sources of assistance to intelligence activities.”

The same presentation contains a slide with the following:

Under regulations, employees are not generally supposed to “collect on US persons.” However, there are 16 exemptions that can be utilized if an employee truly thinks he or she needs to collect information on a US person. In fact, there is this really, really broad exemption that could cover the collection of any piece of information from a US person—anyone with information that could help out the US “intelligence community.”

Who knows whether that piece of information could be useful or not? Best to err on the side of caution and just “collect” it anyway.

Could this “potential source of information or assistance” be a journalist, an attorney for a terrorism suspect or a human rights lawyer involved in a non-governmental organization engaged in work abroad? That is not answered in the presentation.

However, the ACLU did manage to obtain an “intelligence law handbook” from the DIA. It is an “intelligence management document” for “Defense HUMINT [human intelligence] Service.” And this can be found in the guidelines:

While this has been known previously, it is worth emphasizing again that this is a broad exemption that allows for “collection” of information if employees are willfully or unintentionally ignorant.

If something useful is caught in the dragnet, the employee could say he or she had no idea that person worked for Amnesty International USA. That person had an accent and a name that seemed foreign, and they did not openly state for the Stasi-like analyst eavesdropping on their communications, “I am a US person.” So, yes, we “collected” it.

Additionally, with the release of this handbook, the word “collect” joins the ranks of words like “militant,” which have been redefined by the government to make it easier to target people in the perpetual war on terrorism irrespective of their rights as human beings.

A section of the handbook on “collection” contains a definition of the word and what this definition means to intelligence agency employees. It shows how this gives the government the ability to downplay the extent of its surveillance of any persons, whether they are foreigners or Americans:

“Information received from a cooperating source (e.g., the FBI) about a terrorist group is not ‘collected’ unless and until that information is included in a report, entered into a data base, or used in some other manner which constitutes an affirmative intent to use or retain that information.” That is what that actually says.

Let’s consider a person on the New York subway, who likes to go around and shoot upskirt photos of women. If the government’s definition of “collection” is to be taken seriously, then the pervert has not “collected” nude photographs in violation of their privacy until he engages in an “affirmative act” of use or retention. When he masturbates and “uses” them or uploads them anonymously to the Internet, where they can be “retained,” then he has “collected” them. If he never “uses” or “retains” them, it is as if no “collection” ever happened to violate the women.

Any creeper in New York who defended himself from prosecution for unlawful surveillance by making this kind of a preposterous legal argument would deserve to be viewed with contempt. In the context of US intelligence’s foreign surveillance powers, this argument should be viewed similarly.

Plus, the documents collectively make it clear that terrorism is not the only activity that foreign surveillance is targeting.

Abdo explains, “Foreign intelligence information” is “defined so nebulously that it could be read to encompass virtually every communication with one end outside the United States.” Any communication that an employee can claim pertains to some “national security interest,” however that is defined, or connected to an ongoing intelligence operation could be fair game.

It all affirms what NSA whistleblower Edward Snowden has revealed and warned about government surveillance under this executive order. It affirms what Tye said in his column on how Americans’ communications could be “incidentally” collected during a “lawful overseas foreign intelligence investigation.” He claimed the executive order “does not require that the affected US persons be suspected of wrongdoing and places no limits on the volume of communications by US persons that may be collected and retained.” That is all true.

Tye also stated, “No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.” That is true as well, and no piece of legislation, such as the USA Freedom Act, is going to protect Americans from having their communications intercepted by executive authority if employees decide they need the information, do not want to risk terrorism or espionage and proceed to “collect” the information.

All the documents ACLU recently obtained can be found here.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."