Have US officials misled Americans about the activities of the NSA and the scope of their surveillance? Or does the Washington Post have a problem in interpreting the slides they’ve published? The Post’s Greg Miller charges that senior US officials have spread “misinformation” in the weeks after the exposure of the NSA’s PRISM and BLARNEY programs:
Jane Harman, a former ranking Democrat on the House Intelligence Committee, said that speaking about secret programs can be a “minefield” for public officials.
“Are people deliberately misleading other people? I suppose it can happen,” Harman said in an interview. Facts can be obscured through “selective declassification that means you put out some pieces but not others,” she said. “But I assume most people are acting in good faith.”
Acknowledging the “heated controversy” over his remark, Clapper sent a letter to the Senate Intelligence Committee on June 21 saying that he had misunderstood the question he had been asked.
“I have thought long and hard to re-create what went through my mind at the time,” Clapper said in the previously undisclosed letter. “My response was clearly erroneous — for which I apologize.”
Beyond inadvertent missteps, however, an examination of public statements over a period of years suggests that officials have often relied on legalistic parsing and carefully hedged characterizations in discussing the NSA’s collection of communications.
Obama’s assurances have hinged, for example, on a term — targeting — that has a specific meaning for U.S. spy agencies that would elude most ordinary citizens.
“What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls and the NSA cannot target your e-mails,” Obama said in his June 17 interview on PBS’s “Charlie Rose Show.”
But even if it is not allowed to target U.S. citizens, the NSA has significant latitude to collect and keep the contents of e-mails and other communications of U.S. citizens that are swept up as part of the agency’s court-approved monitoring of a target overseas.
The law allows the NSA to examine such messages and share them with other agencies if it determines that the information contained is evidence of a crime, conveys a serious threat or is necessary to understand foreign intelligence.
The threshold for scrutinizing other data not regarded as content but still potentially revealing is lower than it is for the contents of communications. A 2009 report by the NSA inspector general and obtained by The Washington Post indicates that the agency for years examined metadata on e-mails flowing into and out of the United States, including “the sender and recipient e-mail addresses.”
But how much has actually been misinformation on the part of public officials, and how much has been misinformation on the part of the media? TechDirt reviewed the five new NSA slides published by the Post in support of its reporting on the misinformation, and concluded that the Post may be spreading misinformation, too:
Over the weekend there were two “big” new leaks from the documents that Ed Snowden took. The first, about US spying on EU embassies we already covered. The second one seemed bigger, but it also might have just made things murkier. It involves the Washington Post releasing four more slides about the PRISM program from that original slide deck that already had 5 of its 41 slides revealed in previous leaks. These slides show a lot more details about PRISM. What’s amazing is that I’ve seen people claiming completely contrary things in looking over these slides: some are insisting it shows that the companies who are “members” of PRISM don’t — as was originally reported — open up their servers to the NSA. Others insist that the slides actually support that original reporting and show that the companies are lying. …
Things break down when people start to analyze these slides. A few news sources have zeroed in on the claim on that last slide that there are 117,675 “records” in PRISM as of April 5th. But, there’s some disagreement about what the hell that means. The Washington Post says that these are “active surveillance targets” but it’s unclear how they know that. It’s possible that there’s other, as yet unrevealed info that would support that, but even then there’s confusion. How “active” is active? And, what constitutes a “record” anyway? No one seems to be providing any answers.
Without seeing more, it’s difficult to determine the truth of the NSA program, the representations made by members of Congress, and the media reporting on the subject, TechDirt concludes. The secrecy of what’s been revealed so far seems suspicious, but there may even be a (dumb) reason for that:
Of course, if (as the NSA insists) this program is nothing more than these companies responding to valid FISC orders, I don’t see why the NSA itself can’t be a hell of a lot more transparent about these programs. If there’s real oversight over these programs and they’re really only used against actual threats (stop laughing…), then nothing revealed so far seems like it should be secret. It just shows how the system works for delivering the information that is legally required. The fact that there’s so much secrecy over the program suggests either a stupid overclassification insistence by the NSA, or that there’s a hell of a lot beyond this that they don’t want to talk about (such as revealing that the program isn’t what they claim). That seems like the most likely situation given what’s been revealed so far.
For the last word on this subject — at least for this morning — let’s turn to the man whose administration created these programs. Former President George W. Bush tells CNN in the middle of his humanitarian trip to Africa that Snowden’s actions did real damage to the security of the United States:
Former president George W. Bush said in an interview airing Monday that Edward Snowder has “damaged” the security of the United States by leaking information about secret programs — programs Bush defended as respectful of civil liberties.
“I know he damaged the country,” Bush told CNN. “The Obama administration will deal with it.” …
“I put the program in place to protect the country, and one of the certainties is civil liberties were guaranteed,” he said. “I think there needs to be a balance, and as the president explained, there is a proper balance.”
That sounds as if Bush disagrees with TechDirt’s analysis, at least in terms of overclassification, but not in terms of actual operating infringement on the rule of law.