It was revealed last week that Israeli diplomats were not the only targets of the Department of Defense’s data gathering operation on Capitol Hill. The NSA also intercepted sensitive calls by members of Congress in the data collection frenzy. Chairman of the House Oversight committee, Jason Chaffetz (R-UT) sent a one-page letter requesting any and all guidance documents regarding the data collection against members of Congress, and, specifically any discussions surrounding the sensitive Iranian nuclear deal. The inquiry also requested that NSA disclose with whom it has shared its data.
But was the NSA’s collection legal? Former House Intelligence Committee Chairman and now Fellow at the Investigative Project on Terrorism, Pete Hoekstra says Congress needs to act on this disturbing disclosure. “Clearly, they should have the intelligence committees do oversight hearings. They should demand an independent investigation through the IG – inspector general – of these different agencies. They need to find out exactly what happened. I think what happened is this information went from NSA, went to the White House, and the White House then used it to formulate and to push its political agenda on Capitol Hill with this inside information. It is absolutely outrageous and it’s probably the biggest scandal of this president’s administration.”
So how exactly is the US government collecting all that information? The CIA uses its private venture capital firm, In-Q-Tel, a tax-exempt, 501(c)3 corporation to funnel investment in high-tech startups. One such investment, Palantir, is a privately held data collection firm estimated to be worth 20 billion dollars. Palantir’s primary focus is data mining and data analysis contracts with the private sector as well as the US government and foreign intelligence agencies.
Palantir’s work in Washington has expanded its products from eight pilots to more than 50 in a few short years. A scroll through Palantir’s website confirms it has contracts with multiple US Government agencies including, the CIA, DHS, NSA, FBI, CDC, the Marine Corps, the Air Force, Special Operations Command, West Point, Joint IED-defeat organization and Allies, the Recovery Accountability and Transparency Board and the National Center for Missing and Exploited Children to name a few.
But the cozy government data collection relationships of CIA, NSA, and private sector firms, have multiple critics, namely former 30-year NSA veteran William Binney, who blew the whistle on the military’s mass data mining. He said, “If you have information on everybody on the planet that means you might have material to blackmail them or influence them, one way or the other, to make a decision that you want them to make.”
He further explained the dangers of massive data collection. “See that’s the reason why I have been coming out publicly, because where I see it going is a Totalitarian State. I mean you (have) got the NSA doing all the collection of materials on all its (US) citizens, that’s what the SS, the Gestapo, the Stasi, the KGB, and the MVD did. That’s the whole thing, I mean I was there and I watched the people, I worked there for 30 years.”
NSA’s charter reads, in part: “Information Assurance mission confronts the formidable challenge of preventing foreign adversaries from gaining access to sensitive or classified national security information. The Signals Intelligence mission collects, processes, and disseminates intelligence information from foreign signals for intelligence and counterintelligence purposes and to support military operations (emphasis added). This Agency also enables Network Warfare operations to defeat terrorists and their organizations at home and abroad, consistent with US laws and the protection of privacy and civil liberties.”
But are they operating successfully under their charter? Binney claims zero domestic attacks have been prevented. “We‘re doing better at collecting info so you can target individuals if you want to. We’re not doing very good at stopping terrorist attacks,” he told Reason TV.
In an effort to keep the media at bay, many government agencies will use “national security” as a means to block access to highly technical data collection processes. The danger of abuse is real. For example, if the executive branch were in fact collecting phone conversations from members of Congress via the NSA, that knowledge would provide an unfair advantage to the Oval office. Historically, the Intelligence Community (IC) would notify Congress if Congressional information were inadvertently captured, but it does not appear to be the case this time.
Timothy B. Lee of the Washington Post further explains, “In the hands of an unscrupulous future president, mass surveillance could be turned into a powerful weapon against democratic government. For example, having the calling records of every member of Congress would likely reveal which members kept mistresses, which could be used to blackmail members of Congress into supporting a future president’s agenda. Calling records could also provide valuable political intelligence, such as how frequently members of Congress were talking to various interest groups.”
In response to this reporter’s query regarding NSA domestic spying, General Mike Flynn, US Army (Ret) and former director of the Defense Intelligence Agency (DIA) believes “The greatest threat to our nation’s security is the loss of trust between our government and our citizens; (this is) why there is such a sense of frustration in the country. Rebuilding that trust is necessary for us to truly achieve what our founding fathers described as life, liberty and the pursuit of happiness. We should fear no enemy, but we should ensure that our enemies respect us–today, they don’t.”
Perhaps the most neglected topic concerning the collection of metadata comes with the much talked about backdoors and firewalls in hardware and software. The ramifications on US national security would be devastating if foreign countries obtained backdoors and firewalls into US IC databases.
However, this issue is more than just hyperbole, Carl Cameron reported for Fox News back in 2001 that the US was, in fact, relying on foreign entities to provide secure underwater phone wiring lines, according to Taki Magazine. “Amdocs (an Israeli company with IC pedigree) has contracts with the 25 biggest phone companies in America and more worldwide. The White House and other secure government phone lines are protected, but it is virtually impossible to make a call on normal phones without generating an Amdocs record of it. But sources tell Fox News that in 1999, the (former) super-secret National Security Agency, headquartered in northern Maryland, issued what’s called a Top Secret/Sensitive Compartmentalized Information report, TS/SCI, warning that records of calls in the United States were getting into foreign hands – in Israel, in particular. Investigators don’t believe calls are being listened to, but the data about who is calling whom and when is plenty valuable in itself.”
CIA whistleblower Edward Snowden and Binney both shattered the IC circulated myth that only metadata was being collected by the NSA when in fact some calls had been recorded as far back as 2004, according to PBS.
Even a federal appeals court ruled, that the telephone bulk collection goes well beyond the parameters of controversial USA Patriot Act’s Section 215.
“The three-judge panel was asked to consider whether the program violated the Constitution. One of the big reasons it is hard to discern congressional intent in this case, the court wrote, is that the bulk collection program has been shrouded in secrecy. So it cannot ‘reasonably be said” that Congress OK’d ‘a program of which many members of Congress — and all members of the public — were not aware.’”
The court concluded that if Congress wanted to “authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”
Furthermore, focusing on the CIA, NSA and military partnerships, both the Bush and Obama administrations appear to have eviscerated the Posse Comitatus Act that constrains the federal government’s use of military assets in domestic law enforcement.
While there have not been any known reports of coercion or blackmail against members of Congress, the practice is not new. It has been widely reported that former FBI Director, Edgar J. Hoover’s FBI used confidential information to cement his power in Washington DC, even reportedly against John and Robert Kennedy when they sought to fire him.
Nevertheless, reports are that Speaker of the House, Paul Ryan, is considering an investigation into the spying, but Hoekstra suggests forming a select committee to investigate followed by the appointment of a Special Prosecutor if the evidence supports a review of the full legal consequences.
With the IC seemingly involved in data collection inside the US, members of Congress need to ensure we do not lose sight of Winston Churchill’s observation that “The Official Secrets Act was devised to protect the national defense … and ought not to be used to shield ministers who have a strong personal interest in concealing the truth.”
So far both In Q Tel and Palantir have declined comment on this story.