Over the past several days, The Washington Post and The Intercept have published two major stories about the National Security Agency's surveillance programs. Both were months in the making. Both have been touted as the last of the major scoops that Edward Snowden's archive offered up. I wrote here about the Post story.
The Intercept's article is the more explosive of the two, by far. If you've read it, you know now that the NSA spied on at least five American citizens who had no discernable ties to terrorism, and only incidental or professional and functional ties to foreign powers or entities. All were Muslim. They are:
Additionally, an NSA training manual used a slur in place of a generic selector: "Mohammed Raghead."
Most of the story follows the lives of the five men whose names appeared on a database obtained by Snowden and passed to Glenn Greenwald and others. There's very little in the way of context, partly because the document doesn't provide any. There are no classification markings. It's simply a list of hundreds of e-mails, surveillance windows, collection status, and nationality. The "FISA recap" covered by the document ends in 2008. Many of the e-mails belong to known foreign targets; many others could not be matched with a person.
We don't know whether the NSA obtained FISA orders for e-mail content collection against these men, orders that current law, dating to 2008, and previous law, dating to 1978, require. We just do not know. We can assume, but... yeah.
The article is a coda to Greenwald's long-standing contention: that government uses the NSA as a weapon to spread fear, suppress political dissent, harass dissidents, buttress the political standing of the person in power, and to create mayhem in the world. The secret state "breeds a conformist population," Greenwald has said. He believes that most journalists, scared to confront authority, are complicit in its illegitimate extension.
The reaction has been fairly dramatic: the five men surveilled — none of whom was ever charged with a crime — are all over television. Civil rights groups demand answers from the White House. And the NSA response has been cryptic, leading to some confusion.
A joint statement released by the NSA and its boss, the Office of the Director of National Intelligence, has nothing directly to say about the central facts of the story. It does not address whether the men were indeed surveilled, or if so, why. It does, however, defend the criteria used by the FISA Court in order to authorize surveillance. And the statement insists that the NSA does not use its powers to harass Americans or suppress dissent.
Here are two particularly interesting sentences from the NSA's statement:
The article implies that the only remotely controversial or remarkable facts about these men are incidental to either their professions or their political beliefs and actions: lawyers representing people accused of being terrorists or raising money for them, college professors, and policy advocates. The NSA acknowledges that, yes, First Amendment activities CAN contribute to the decision to seek a FISA order — hence the phrase "based solely" in sentence one. This sounds Orwellian, but it's common sense: if an American spying for Russia organizes anti-American military protests in California, the fact that he does so could be used by the NSA as a way to justify that he is working on behalf of the Russian government. I can express a belief that Hezbollah may target non-combatants as matter of justice. As long as I am not actually working, or raising money for Hezbollah, a terrorist organization under most auspices, the government should not notice. The NSA says here that it does not notice.
Crucially, though, the standard for surveillance is not what someone does; the way you get a FISA order drawn for you is based on who you're ultimately working for. In other words, the standard is based largely on membership. If the FBI or NSA has evidence that you are working covertly on behalf of a foreign power, or provide material support to a terrorist organization, or belong to a terrorist organization, or are directly and regularly associated with terrorist organizations, the government will logically subject your actions to more scrutiny. (You can read the full FISA standard here; it's very elaborate.)
I would suggest that the NSA's inclusion of these two sentences implies that it believed that the five men met FISA's standard for "agents of foreign powers." That doesn't by itself give the government its FISA order. Once your membership has been established, the government must also provide evidence to the FISA Court that you have done or intend to do bad stuff. (Might that evidence be derived solely from existing or incidental surveillance? I don't know.) "Bad stuff," by the way, is defined by a parade of horribles: terrorism, nuclear proliferation, trafficking, espionage, and sabotage.
By no means is this standard airtight. It is possible that innocent people can meet the criteria set out below and thus find themselves subject to NSA collection. If this happens, though, unless the NSA has a secret policy specifically designed to suppress domestic dissent, it would be rare. The rules governing FISA orders aren't classified. They are public. They might be complicit in allowing the government to cast a net that's too wide, but they aren't unknowable.
But the actual FISA orders themselves are classified. The person under surveillance cannot logically be informed about the surveillance if the government has a compelling interest to collect on you in the first place. The NSA insists that it puts together target packages very carefully, and by the time they submit one to a judge, the evidence is airtight and marginal cases have been weeded out. The NSA further notes that the FISA court is an independent branch of government and can deny the petition if it wants to. All other things being equal, it sounds fair.
All ain't equal. The NSA is a huge, powerful organization operating in secret. Historically the NSA and FBI monitored domestic supporters of communism, even when there was no evidence that the person had any intent to act contrary to the national interest. It monitored all outgoing U.S. calls to South America during the 1960s. It intercepted telegrams sent from Americans inside the United States to family members abroad. It did all these things legally, at the time. The FBI was used to suppress dissent and squash the civil rights movement.
Yes — we live 40 years removed from the bad old days. As shaky as it seems, congressional oversight is much stronger. Judicial review is now enshrined. The NSA workforce is professionalized. The NSA now has no incentive to spy on, or to harass, innocent Americans. Most of the evidence released by Edward Snowden, along with court filings declassified by the government, show an agency overwhelmed with post 9/11 taskings and working slowly, painfully, to segregate relevant, legal intelligence collection from non-relevant, illegal spying.
That said, being Muslim after 9/11 automatically made mosques a target for NYPD surveillance in New York. The FBI, trying to get its arms around a genuine threat, abused its power and harassed innocents. The NSA decided that to fulfill its collection mission, it had to over-collect, and then sift, rather than err on the side of caution and select individual targets carefully — something that the way we communicate now makes it virtually impossible to do. Maybe this meant that the evidence it used to tie someone to a foreign power was thin — way too thin. We will never see the orders, so we don't know. These five men are innocent, completely, until and unless it is proven otherwise. So your sympathy here should rest with them, I think. Was the NSA influenced by America's post 9/11 paranoia against Muslims? Maybe so.
So: assuming that these five men were subject to NSA collection, here's the complicated question that we should be asking:
Do we believe that the rules in place...
would have been sufficient....
to prevent the agency from basing their decision to collect intelligence on U.S. persons...
largely or entirely on the basis of religious affiliation or protected First Amendment activity....
if the NSA had an intention or inclination to use its capacity to spy for those reasons?
This used to be a "they" question, a question for people with security clearances. Like it or not, it is now a "we" question.