09/30/2013 03:29 pm ET Updated Nov 30, 2013

NSA's Actual Reach Exceeds Its Constitutional Grasp

  • Article II, section 4, the Constitution of the United States: "The President, the Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."
  • 1st Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press..."

  • 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
  • Thomas Jefferson in Notes of Debates in the Federal Convention of 1787 Reported by James Madison: It should be remembered as an axiom of eternal truth in politics that whatever power . . . is independent is absolute. ***

  • "Impeachment is scarcely a scarecrow..."
  • quote from NSA "Emperor" Gen. Keith Alexander in response to Sen. Mark Udall before the Senate Intelligence Committee, September 26, 2013:

  • Udall: "Is it the goal of the NSA to collect the phone records of all Americans?" Alexander: "I believe it is in the nation's best interests to put all the phone records into a lockbox that we could search when the nation needs to do it, yes."
  • quote from Sen. Ron Wyden directed at Gens. Clapper and Alexander: "The leadership of your agencies built an intelligence-collection system that repeatedly deceived the American people. Time and time again, the American people were told one thing about domestic surveillance in public forums while government agencies did something else in private. Now that these secret interpretations of the law and violations of the constitutional rights of Americans have become public, your agencies face terrible consequences."



The blockbuster story by James Risen and freelance journalist Laura Poitras in the New York Times of September 29--"N.S.A. Gathers Data on Social Connections of U.S. Citizens"--should be enough to either a) lead to resignations from high office; or b) spark the appointment of a special Federal prosecutor; or c) cause the House Judiciary Committee to hold a preliminary hearing on possible impeachment charges. For the bald fact is that the White House under President Barack Obama (of whom I have been a strong supporter) has run off the constitutional tracks of government in its intelligence practices and policies.

Content Analysis from the Times Report by James Risen and Laura Poitras

The following seriatim excerpts are from the New York Times story (emphases added):

Since 2010,

the National Security Agency has been exploiting its huge collections of data to create sophisticated graphs of some Americans' social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information. *** The agency can augment the communications data with material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data. [Documents] do not indicate any restrictions on the use of such 'enrichment' data, and several former senior Obama administration officials said the agency drew on it for both Americans and foreigners. *** The spy agency began allowing the analysis of phone call and e-mail logs in November 2010 to examine Americans' networks of associations for foreign intelligence purposes after N.S.A. officials lifted restrictions on the practice.

Who is on record as participating in authorizing the removal of restrictions?

The policy shift was intended to help the agency 'discover and track' connections between intelligence targets overseas and people in the United States, according to an N.S.A. memorandum from January 2011. The agency was authorized to conduct 'large-scale graph analysis on very large sets of communications metadata without having to check foreignness' of every e-mail address, phone number or other identifier. Because of concerns about infringing on the privacy of American citizens, "the computer analysis of such data had previously been permitted only for foreigners."

N. S. A. officials declined to say how many Americans have been caught up in the effort, including people involved in no wrongdoing. The documents do not describe what has resulted from the scrutiny, which links phone numbers and e-mails in a 'contact chain' tied directly or indirectly to a person or organization overseas that is of foreign intelligence interest. *** Almost everything about the agency's operations is hidden, and the decision to revise the limits concerning Americans was made in secret, without review by the nation's intelligence court or any public debate.

At the White House, who signed off on this decision of great consequence?

The legal underpinning of the policy change? Based on a 1979 Supreme Court ruling,

the Justice Department and the Pentagon decided that it was permissible to create contact chains using Americans' 'metadata,' which includes the timing, location and other details of calls and e-mails... The agency is not required to seek warrants for the analyses from the Foreign Intelligence Surveillance Court.

Who decided at the Justice and Defense departments?

[On September 25, Sen. Rand Paul (R-KY) said he didn't understand how a "warrant that has 10 million unnamed people, all customers of Verizon" is consistent with the Constitution. AP: "Bill to End NSA's Bulk Collection of Phone Records Put Forward by Bipartisan Group of Senators."]

The concerns in the United States since Snowden's revelations have largely focused on the scope of the agency's collection of the private data of Americans and the potential for abuse. But the new documents provide a rare window into what the N.S.A. actually does with the information it gathers.*** N.S.A. analysts can exploit that information to develop a portrait of an individual, one that is perhaps more complete and predictive of behavior than could be obtained by listening to phone conversations or reading e-mails ...

Phone and e-mail logs, for example, allow analysts to identify people's friends and associates, detect where they were at a certain time, acquire clues to religious or political affiliations, and pick up sensitive information like regular calls to a psychiatrist's office, late-night messages to an extramarital partner or exchanges with a fellow plotter.

This process has been described as the digital equivalent of tailing a suspect.

The N.S.A. had been pushing for more than a decade to obtain the rule change allowing the analysis of Americans' phone and e-mail data [but] had been initially rebuffed because it was not permitted under rules of the Foreign Intelligence Surveillance Court that were intended to protect the privacy of Americans. A draft of an N.S.A. inspector general's report suggests that contact chaining and analysis may have been done on Americans' communications data under the Bush Administration's program of wiretapping without warrants, which began after the Sept. 11 attacks to detect terrorist activities and skirted the existing laws governing electronic surveillance.

A new policy in 2008 ... authorized by Defense Secretary Robert M. Gates and Attorney General Michael B. Mukasey, said that since the Supreme Court had ruled that metadata was not constitutionally protected, N.S.A. analysts could use such information 'without regard to the nationality or location of the communicants.'

After that decision the N.S.A. performed the social network graphing in a pilot project. *** It was put in place in November 2010. ... N.S.A. analysts were told that they could trace the contacts of Americans as long as they cited a foreign intelligence justification. That could include anything from ties to terrorism, weapons proliferation or international drug smuggling to spying on conversations of foreign politicians, business figures or activists.

The agency is required to obtain a warrant from the intelligence court to target a 'U.S. person' -- a citizen or legal resident -- for actual eavesdropping.

The documents show that significant amounts of information from the United States go into a [code name depository.] *** In 2011 it was taking in 700 million phone records per day. In August 2011, it began receiving an additional 1.1 billion cellphone records daily from an unnamed American service provider under Section 702 of the 2008 FISA Amendments Act, which allows for the collection of the data of Americans if at least one end of the communication is believed to be foreign.

An internal briefing paper from the N.S.A. Office of Legal Counsel in 2010 showed that the agency was allowed to collect and retain raw traffic, which includes both metadata and content, about 'U.S. persons' for up to five years online and for an additional 10 years offline.

List of the Responsible

In reading through this latest national press story, and building on previous ones that originated with the Snowden documents, it is possible to identify a preliminary list of current office holders (short of the President), some of whom are directly implicated--others may have plausible deniability--in committing serious offenses against the Constitution and laws of the land. Call it a suggestive "contact chain." For openers, they are:

1. Gen. Keith Alexander, Director of the National Security Agency, 2005-present; Commander of the U.S. Cyber Command, 2010-present.

2. John Brennan, Director of the Central Intelligence Agency, 2013-present; Deputy National Security Advisor for Homeland Security and Counterterrorism, White House, 2009-2013.

3. Gen. James Clapper, Director of National Intelligence, 2010-present.

4. David Cohen, Under Secretary of the Treasury for Terrorism and Financial Intelligence, 2011-present.

5. James Cole, Deputy Attorney General, 2010-present.

6. Eric Holder, Attorney General of the United States, Justice Department, 2009-present.

7. Matthew Olsen, Director of the National Counterterrorism Center, 2011-present.

8. Stephanie O'Sullivan, Principal Deputy Director of National Intelligence, 2011-present.

9. Phyllis Schneck, Deputy Under Secretary for Cybersecurity, Department of Homeland Security, 2013-present

10. Michael Vickers, Under Secretary of Defense for Intelligence, 2011-present.

This week, when Sen. Patrick Leahy (D-VT) holds an open hearing in the Judiciary Committee on the NSA scandals, it is due to feature testimony from the same two generals: Director of National Intelligence James Clapper and Gen. Keith Alexander, the dual leader of the NSA and U.S. Cyber Command. There is a much deeper lineup of witnesses that he could summon, and perhaps break free of the Administration's lockstep act. The individuals above have some skin in the game.