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Lawsuit Targets Use Of Warrantless NSA Wiretaps In Criminal Prosecutions

By Ken Dilanian, Tribune Washington Bureau

WASHINGTON — When federal prosecutors charged Colorado resident Jamshid Muhtorov in 2012 with providing support to a terrorist organization in his native Uzbekistan, court records suggested the FBI had secretly tapped his phones and read his emails.

But it wasn’t just the FBI. The Justice Department acknowledged in October that the National Security Agency had gathered evidence against Muhtorov under a 2008 law that authorizes foreign intelligence surveillance without warrants, much of it on the Internet. His lawyers have not been permitted to see the classified evidence.

In January, Muhtorov became the first defendant to challenge the constitutionality of that law, which allows the NSA to vacuum up phone and email conversations involving Americans as long as one end of the communication is abroad.

Civil liberties activists hope the case, and other court challenges in Illinois, Oregon and New York, will focus judicial scrutiny on whether the government can use the results of foreign intelligence gathering in domestic criminal prosecutions. Domestic wiretaps require a court order specifically for the person targeted; overseas wiretaps do not.

The issue has emerged since former NSA contractor Edward Snowden began leaking details of secret agency spying programs at home and abroad last summer, sparking a debate over privacy versus national security.

Activists have urged the White House to impose new restrictions on how the government handles information on U.S. citizens and legal residents that was inadvertently obtained through its warrantless surveillance, as a presidential task force recently recommended.

The NSA obtains much of the data via secret court orders to Google, Facebook and other U.S. technology companies under a program known as PRISM, one of the systems Snowden exposed.

U.S. officials say the communications of Americans are obtained unintentionally because it is often difficult to tell whether a Yahoo or Gmail address belongs to an American or a foreigner. In some cases, Americans are picked up communicating with foreigners or groups targeted by the NSA.

It’s unclear how much information the NSA keeps on Americans, or how it is used.

“This is a potentially important loophole in current wiretap law,” said Peter Swire, a privacy law expert who served on the presidential task force. “They shouldn’t be holding information about U.S. persons unrelated to an investigation.”

The NSA is using its authority to monitor foreigners overseas “as a pretext to monitor Americans here at home,” said Jameel Jaffer, an attorney for the American Civil Liberties Union who represents Muhtorov in challenging the surveillance.

“We now know the government has used (data on Americans) in criminal investigations,” he added. “But has it relied on the database to put people on the no-fly list, or to deny people security clearances, or to deny them government employment or government contracts?”

In its report to President Barack Obama in December, the task force recommended that information on or about Americans or legal residents should be destroyed unless it offered intelligence value or indicated a clear threat.

It also recommended that the NSA not use names of U.S. citizens, their email addresses or other potential identifiers to search its database, and suggested banning the use of transcripts from warrantless wiretaps in criminal courts.

Thus far the Obama administration has adopted none of those changes. James R. Clapper, director of national intelligence, recently acknowledged to Congress that NSA analysts sometimes used the name, email address or phone number of a U.S. citizen or legal resident to search material gathered under PRISM.

The FBI opposes new restrictions on the use of NSA data. Officials fear a rebuilding of the so-called wall that blocked intelligence and law enforcement agencies from sharing crucial clues and information before the Sept. 11, 2001, terrorist attacks and say the Muhtorov case proves the value of such sharing.

“Why would we want to deny ourselves access to information that is both relevant and lawfully collected?” asked a senior U.S. intelligence official not authorized to be quoted publicly.

The NSA collected more than 250 million Internet communications under PRISM in 2011, according to a declassified decision by the Foreign Intelligence Surveillance Court, which approves the court orders.

U.S. officials say they black out names of Americans that accidentally pop up, and that some of the collected data is never examined. The task force concluded, however, that the approach “does not adequately protect the legitimate privacy interests of United States persons when their communications are incidentally acquired.”

It’s unclear how often the NSA passes tips to law enforcement agencies about criminal activity unrelated to terrorism. Current and former intelligence officials say the practice is rare because the NSA doesn’t want to appear in court.

Muhtorov’s supporters say his case shows government overreaching.

Muhtorov, now 38, was resettled with his wife and two children in Aurora, Colo., in 2007 by the U.S. government after he fled harsh political repression in Uzbekistan. A 2005 State Department report described him as a human rights activist and said his sister had been arrested on trumped-up charges.

The FBI arrested Muhtorov in Chicago in 2012 as he prepared to travel to Turkey. Prosecutors say he planned to join the Islamic Jihad Union, a terrorist group in Uzbekistan with ties to al-Qaida.
In emails, Muhtorov swore allegiance to the Uzbek group and said he was “ready for any task, even at the risk of dying,” according to the criminal complaint. U.S. officials offered no evidence indicating he planned to attack American or Western interests.

The criminal complaint does not refer to the NSA, but it says the government discovered that Muhtorov was communicating with a foreign member of a terrorist group abroad; the NSA apparently was monitoring that person or group.

Based on that intelligence, federal authorities began monitoring Muhtorov using a secret national security warrant specific to him.

A Justice Department spokesman declined to comment on the case. Muhtorov’s lawyer, who was assigned by the public defender’s office, also declined to comment.

AFP Photo/Paul J. Richards

NSA Chief’s Legacy Is Shaped By Big Data, For Better And Worse

By Ken Dilanian, Tribune Washington Bureau

FORT MEADE, Md. — In nearly nine years as head of the nation’s largest intelligence agency, Gen. Keith Alexander presided over a vast expansion of digital spying, acquiring information in a volume his predecessors would have found unimaginable.

In Iraq, for example, the National Security Agency went from intercepting only about half of enemy signals and taking hours to process them to being able to collect, sort and make available every Iraqi email, text message and phone-location signal in real time, said John “Chris” Inglis, who recently retired as the NSA’s top civilian.

The overhaul, which Alexander ordered shortly after taking leadership of the agency in August 2005, enabled U.S. ground commanders to find out when an insurgent leader had turned on his cellphone, where he was and whom he was calling.

“Absolutely invaluable,” retired Gen. David H. Petraeus, the former U.S. commander in Iraq, said in an interview as he described the NSA’s efforts, which led to the dismantling of networks devoted to burying roadside bombs.

Alexander “sped the place up,” Inglis said.

But something else seems likely to shape the legacy of the NSA’s longest-serving director, who retired Friday: something that Alexander failed to anticipate, did not prepare for and even now has trouble understanding.

Thanks to Edward Snowden, a former NSA contractor, the world came to know many of the agency’s most carefully guarded secrets. 10 months after the disclosures began, Alexander remains disturbed, and somewhat baffled, by the intensity of the public reaction.

“I think our nation has drifted into the wrong place,” he said in an interview last week. “We need to recognize that those who are working to protect our nation are not the bad people.”

When Snowden’s disclosures began, Alexander and his deputies knew they were in for a storm. But they felt sure the American public would be comforted when they learned of the agency’s internal controls and the layers of oversight by Congress, the White House and a federal court.

“For the first week or so, we all had this idea that we had nothing to be ashamed of, and that everyone who looked at this in context would quickly agree with us,” Inglis said.

Instead, polls show, many Americans believe that the NSA is reading their emails and listening to their phone calls. A libertarian group put an advertisement in the Washington transit system calling Alexander, a 62-year-old career military officer, a liar. U.S. technology companies are crying betrayal.

The ease with which Snowden removed top-secret documents also embarrassed an agency that is supposed to be the first line of defense against cyberattacks.

In July, Alexander offered to resign, but the White House turned him down, he said. He didn’t think holding other senior officials accountable would be right because a massive theft of documents by a systems administrator could not have been foreseen, he added.

The NSA has since implemented 42 changes to security procedures aimed at preventing a recurrence. In a system akin to that used with nuclear missiles, two people will be required for the sort of bulk movements of data Snowden handled, so each can watch the other.

Alexander blames the vehemence of the public reaction on what he views as sensational and misleading reporting, amplified by critics who want to radically curtail the agency. He sees a fundamental difference between the intelligence abuses uncovered by Congress in the 1970s — including revelations that the NSA spied without warrants on domestic dissidents — and the programs exposed by Snowden.

“What the Church and Pike committees found” nearly 40 years ago was “that people were doing things that were wrong. That’s not happening here,” Alexander said, referring to the panels headed by Sen. Frank Church (D-ID), and Rep. Otis Pike (D-NY), that examined intelligence-agency activities in that era.

Outside reviews, including one released in December by a presidential task force, he said, found that “lo and behold, NSA is doing everything we asked them to do, and if they screw up, they self-report.”

The task force reported it found “no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity.” But it also noted “serious and persistent instances of noncompliance” with privacy and other rules. Even if unintentional, those violations “raise serious concerns” about the NSA’s “capacity to manage its authorities in an effective and lawful manner,” the report said.

Alexander’s world view reflects a career in the national security bubble, said Michael German, a former FBI agent now at the Brennan Center for Justice, a civil liberties organization in New York.

“When you’re the good guy and you’re on the side of truth and democracy and the American way, anything that is an impediment to you is naturally bad and needs to be overcome, even if it’s the law,” German said.

But Timothy Edgar, a former White House privacy and civil liberties director who now teaches law at Georgetown University Law Center, said the NSA is “certainly not the villain in this story. They were doing exactly what the president and Congress told them to do.”

What Alexander missed, Edgar and others said, was how Orwellian bulk data collection would look to a public with no context about how the NSA had been using the information.

Unlike the CIA, which makes a considerable effort to shape its image, the NSA had spent years shying away from public engagement. The agency’s culture of secrecy is so extreme that in its early years, its existence was not even acknowledged. Unlike other intelligence agencies, the NSA didn’t boast of its role, a crucial one, in helping find Osama bin Laden in Pakistan.

As a result, the NSA had little political capital when Snowden’s disclosures began. Nor did its officials know how to deal with the barrage of stories. The resulting response was flat-footed, agency officials acknowledged privately.

“Keith’s an engineer,” said a former senior intelligence official who worked for Alexander and who commented on condition of anonymity. “With Keith, it was always, ‘If we can do it, we ought to do it.’”

Alexander had a reputation for aggressiveness even before he came to the NSA. For much of his tenure, that approach helped him, particularly in dealing with one of the biggest challenges the NSA faced.

“They had so much data that they didn’t know what to do with it, and one of Alexander’s successes is how you make a mass of data your friend,” said James Lewis, a cybersecurity expert at the Center for Strategic and International Studies in Washington.

Alexander implemented “big data” solutions that revolutionized the sorting and processing of intelligence. One such tool, created by young NSA engineers and later released to the public, was Apache Accumulo, a sorting tool that can process petabytes of data — many Libraries of Congress’ worth.

The NSA relies on those sorts of innovations to keep ahead in the cat-and-mouse game of signals intelligence. And eventually, in five or 10 years, the United States will recover from the Snowden affair, Alexander said. But for now, once-fruitful tactics have become all but useless.

Sophisticated adversaries already knew a lot about U.S. capabilities, of course. But often, “the reason that we’re successful is because people are lazy. They don’t do what they’re supposed to do,” said retired Lt. Gen. Richard Zahner, a former senior NSA official.

Now, Russian ground commanders and al-Qaida cell leaders are on notice that the NSA is nearly everywhere.

Alexander leaves office not knowing how deep the damage will go. It’s a frustrating situation for a man who made his mark acquiring more information than anyone before him. Officials believe Snowden accessed as many as 1.7 million documents, but Alexander said investigators don’t know how many of those he actually took, nor what he’s passed to others.

“What the reporters have, what the Russians have, what the Chinese have” all remain questions, he said. “We don’t know for sure on a lot of those things.”

Fibonacci Blue via Flickr

NSA Chief’s Legacy Is Shaped By Big Data, For Better Or Worse

By Ken Dilanian, Tribune Washington Bureau

FORT MEADE, Md. — In nearly nine years as head of the nation’s largest intelligence agency, Gen. Keith Alexander presided over a vast expansion of digital spying, acquiring information in a volume his predecessors would have found unimaginable.

In Iraq, for example, the National Security Agency went from intercepting only about half of enemy signals and taking hours to process them to being able to collect, sort and make available every Iraqi email, text message and phone-location signal in real time, said John “Chris” Inglis, who recently retired as the NSA’s top civilian.

The overhaul, which Alexander ordered shortly after taking leadership of the agency in August 2005, enabled U.S. ground commanders to find out when an insurgent leader had turned on his cellphone, where he was and whom he was calling.

“Absolutely invaluable,” retired Gen. David H. Petraeus, the former U.S. commander in Iraq, said in an interview as he described the NSA’s efforts, which led to the dismantling of networks devoted to burying roadside bombs.

Alexander “sped the place up,” Inglis said.

But something else seems likely to shape the legacy of the NSA’s longest-serving director, who retired Friday: something that Alexander failed to anticipate, did not prepare for and even now has trouble understanding.

Thanks to Edward Snowden, a former NSA contractor, the world came to know many of the agency’s most carefully guarded secrets. Ten months after the disclosures began, Alexander remains disturbed, and somewhat baffled, by the intensity of the public reaction.

“I think our nation has drifted into the wrong place,” he said in an interview last week. “We need to recognize that those who are working to protect our nation are not the bad people.”

When Snowden’s disclosures began, Alexander and his deputies knew they were in for a storm. But they felt sure the American public would be comforted when they learned of the agency’s internal controls and the layers of oversight by Congress, the White House and a federal court.

“For the first week or so, we all had this idea that we had nothing to be ashamed of, and that everyone who looked at this in context would quickly agree with us,” Inglis said.

Instead, polls show, many Americans believe that the NSA is reading their emails and listening to their phone calls. A libertarian group put an advertisement in the Washington transit system calling Alexander, a 62-year-old career military officer, a liar. U.S. technology companies are crying betrayal.

The ease with which Snowden removed top-secret documents also embarrassed an agency that is supposed to be the first line of defense against cyberattacks.

In July, Alexander offered to resign, but the White House turned him down, he said. He didn’t think holding other senior officials accountable would be right because a massive theft of documents by a systems administrator could not have been foreseen, he added.

The NSA has since implemented 42 changes to security procedures aimed at preventing a recurrence. In a system akin to that used with nuclear missiles, two people will be required for the sort of bulk movements of data Snowden handled, so each can watch the other.

Alexander blames the vehemence of the public reaction on what he views as sensational and misleading reporting, amplified by critics who want to radically curtail the agency. He sees a fundamental difference between the intelligence abuses uncovered by Congress in the 1970s — including revelations that the NSA spied without warrants on domestic dissidents — and the programs exposed by Snowden.

“What the Church and Pike committees found” nearly 40 years ago was “that people were doing things that were wrong. That’s not happening here,” Alexander said, referring to the panels headed by Sen. Frank Church, D-Idaho, and Rep. Otis Pike, D-N.Y., that examined intelligence-agency activities in that era.

Outside reviews, including one released in December by a presidential task force, he said, found that “lo and behold, NSA is doing everything we asked them to do, and if they screw up, they self-report.”

The task force reported it found “no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity.” But it also noted “serious and persistent instances of noncompliance” with privacy and other rules. Even if unintentional, those violations “raise serious concerns” about the NSA’s “capacity to manage its authorities in an effective and lawful manner,” the report said.

AFP Photo/Paul J. Richards

CIA Suspends Chief Of Iran Operations Over Workplace Issues

By Ken Dilanian, Tribune Washington Bureau

WASHINGTON — The CIA’s chief of Iran operations was placed on paid administrative leave and sent home from agency headquarters after an internal investigation found he had created an abusive and hostile work environment that put a critical division in disarray, according to current and former officials.

Officers and analysts in the Iran operations division, which coordinates spying on Iran and its nuclear program, were informed at a meeting last week at CIA headquarters in Langley, Virgina, of the decision to suspend Jonathan Bank, a veteran officer and member of the senior intelligence service.

Three former officials said the Iran operations division was in open rebellion to Bank’s management style, with several key employees demanding transfers.

“Iran is one of most important targets, and the place was not functioning,” one of the former officials said.

In 2010, Bank was pulled out as CIA station chief in Islamabad after newspapers in Pakistan, India, England and elsewhere published his name in connection with a court case, and the agency said he had received death threats. U.S. officials believe Pakistan’s intelligence service leaked the name in a dispute over CIA drone attacks in the country’s tribal belt.

Bank, now 46, previously served at CIA stations in the Balkans, Moscow and Baghdad, former agency officials said. He also was a top assistant to James Pavitt, who from 1999 to 2004 headed the CIA’s operations arm, now known as the National Clandestine Service.

The former CIA officials spoke on condition of anonymity to discuss a personnel matter. Bank is technically undercover, but his name has been public since the 2010 incident. He did not respond to email messages requesting comment.

Dean Boyd, the agency’s chief spokesman, said he could not comment on a personnel issue.

“As a general matter, the CIA expects managers at all levels to demonstrate leadership skills and foster an environment that helps their employees perform at the highest levels to achieve agency objectives,” Boyd said. “Whenever that doesn’t happen, we examine the situation carefully and take appropriate action.”

Several former CIA officials said they could not remember a senior manager being suspended over workplace issues, but management problems are a recurring challenge at the agency.

According to a Los Angeles Times report in July, an internal CIA workplace survey in 2009 found that those who left the spy agency frequently cited bad management as a factor, particularly in the clandestine service. In interviews, former officers said they felt poor managers suffered no consequences.

AFP Photo/Saul Loeb

Feinstein Publicly Accuses CIA Of Spying On Senate Computers

By Ken Dilianian, Tribune Washington Bureau

WASHINGTON — Senator Dianne Feinstein, the head of the Senate Intelligence Committee, escalated a behind-the-scenes dispute with the CIA by publicly accusing the spy agency of secretly searching a Senate computer system, an act she said undermines congressional intelligence oversight and may have violated the law.

The expanding dispute has opened a rift between the CIA and the Senate committee that oversees it and often has defended it. Already, some CIA officers could face criminal prosecution as a result of a Justice Department investigation of the incident.

“I have grave concerns that the CIA search may well have violated the separation of powers principles,” Feinstein said on the Senate floor. “I am not taking it lightly.”

CIA Director John Brennan is also expected to speak publicly Tuesday, and he and his agency see the situation much differently. They believe the CIA acted appropriately in response to Senate staffers who improperly gained access to documents they were not supposed to have.

The clash grew out of a long-running Intelligence Committee study of the CIA’s interrogation and detention practices under the George W. Bush administration. As part of that inquiry, the CIA set up a special facility in Virginia where committee staff members could review millions of secret documents.

At some point during their work, Senate staff members gained access to the draft of an internal review the CIA had done of the interrogations. Senators say that internal review, which remains classified, was far more critical of the CIA than the agency’s official responses to their questions had been.

CIA officials say the Senate aides were never supposed to have access to the draft, which they claim is covered by executive privilege. They began to investigate how the committee staff members had gained access to it.

In January, the CIA informed the committee it had conducted what the agency called an “audit” to determine how the staff members got the study.

The CIA has referred the conduct of its own officers — and also that of Senate aides — to the Justice Department for possible criminal investigation, officials said.

Feinstein said CIA action may have violated the Constitution, various federal laws and a presidential executive order that prohibits the agency from conducting domestic surveillance.

She asked for an apology and an acknowledgment from the CIA that its search of the committee’s computers was inappropriate, but “I have received neither.”

In a statement last week, Brennan said the CIA acted appropriately.

Feinstein’s comments raise the stakes of the dispute that has surrounded the committee’s study of the CIA’s actions. The committee report on interrogation practices has not been made public, but people who have read it say it amounts to a blistering indictment of the CIA program that many consider to have involved torture.

Little useful intelligence was gained from the tactics, the report concludes, and it says CIA officials lied to their superiors and Congress about what was happening.

In a written response that it also still classified, the CIA disputes those conclusions.

AFP Photo/Mark Wilson

Secret Surveillance Court Judges Oppose Reform Ideas

By Ken Dilanian, Tribune Washington Bureau

WASHINGTON — Judges on the federal government’s secret surveillance court have strongly rejected any proposed changes to their review process, putting unexpected pressure on the White House on Tuesday as President Barack Obama prepares a speech aimed at bolstering public confidence in how the government collects intelligence.

In a blunt letter to the House and Senate intelligence and judiciary committees, U.S. District Judge John D. Bates made it clear that the 11 judges on the Foreign Intelligence Surveillance Court are united in opposition to key recommendations by a presidential task force last month aimed at increasing transparency and judicial oversight, including at least one that Obama has tentatively endorsed.

The surveillance court judges have not previously gone public so it is difficult to gauge how much weight their opposition carries. But their skepticism adds to a list of hurdles for those advocating significant reforms following former National Security Agency contractor Edward Snowden’s massive disclosures of domestic and foreign surveillance programs.

Most surprisingly, Bates said the judges opposed adding an independent advocate for privacy and civil liberties to the court’s classified hearings, saying the proposal was “unnecessary, and could prove counterproductive.”

Obama and some intelligence officials have publicly signaled support for creating an adversarial legal process in the court, which now hears only from government lawyers, and aides have suggested the president will create an advocate’s position or call for legislation to do so in a speech scheduled for Friday morning at the Justice Department. The proposal was widely viewed as among the least controversial of the changes under consideration at the White House.

But Bates disagreed sharply, arguing that “the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation.”

Adding an advocate to “run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection,” he added.
Bates is the former presiding judge of the court, which was created under the 1978 Foreign Intelligence Surveillance Act and reviews applications from intelligence and law enforcement agencies for classified surveillance warrants and programs. He now serves as liaison for the federal judiciary on FISA issues.

Bates said he had consulted with current and former judges on the secret court and one above it that reviews its decisions, and thus speaks for them. His three-page letter was accompanied by 15 pages of judicial comments and legal footnotes.

The judges were uniformly against making the secret judicial review more transparent, a practice that Obama has espoused. “Releasing freestanding summaries of court opinions is likely to promote confusion and misunderstanding,” Bates wrote.

His letter said the judges also opposed broadening the selection process of FISA court judges, who now are chosen only by the chief justice of the Supreme Court. Obama has not signaled whether he is considering changing that system to add diversity to the FISA court.

Not unexpectedly, the judges announced their reluctance to drastically expand their caseload by being required to review and approve so-called national security letters. The FBI currently uses the letters and needs no warrant to issue administrative subpoenas to gain access to customer records from telephone, credit card and other companies more than 20,000 times a year.

Even if they were given extra resources, requiring a judge’s approval for each subpoena “would fundamentally transform the nature of the (court) to the detriment of its current responsibilities,” Bates wrote.

Senior FBI and intelligence officials already had lined up in opposition to requiring warrants for the national security letters, and Obama has shown no sign of planning to upend that system.

The most sweeping recommendation by the presidential task force would force the NSA to stop collecting and archiving Americans’ telephone toll records, and shift responsibility for the vast database back to the telephone companies or a private entity. White House aides have said Obama is strongly considering some variation of the proposal, which would require action by Congress.
But telecommunications officials and some members of Congress are sharply opposed to ordering private companies to hold records of billions of American telephone calls for government use because of potential legal liability and the cost.

At a Senate Judiciary Committee hearing Tuesday, some lawmakers worried whether the records would be secure in private hands.

Among those who testified was Cass Sunstein, a former Obama adviser who served on the task force. Asked about Bates’ opposition to naming a privacy advocate, Sunstein told the committee: “We respectfully disagree with that one…. In our tradition, the judge doesn’t decide whether one (side) or another gets a lawyer.”

Privacy activists don’t expect Obama to announce major reforms in his speech Friday, said Fred Cate, a law professor at Indiana University.

“I don’t think anyone is expecting this to be good news,” he said. Given that Snowden’s leaks to the media have caused an uproar overseas, “I don’t see that this is likely to get him out of hot water with Europe or with the privacy community.”

Photo: Fibonacci Blue via Flickr