Several laudable attempts at reform came close to being adopted, most notably the Amash-Conyers Amendment to the 2014 National Defense Authorization Act that suffered a narrow 205-to-217 defeat; the USA Freedom Act that failed by a mere two votes in the Senate; and the Massie-Lofgren Amendment to the 2015 Defense Appropriations bill that passed the House by a large 293-123 bipartisan margin but was stripped from the 2015 Omnibus spending bill by our congressional leaders.
Sadly, the efforts of numerous members of Congress failed to sway the congressional leadership despite a clear message from their constituents that they valued privacy and other constitutional rights and rejected the idea of sacrificing those freedoms for the sake of ostensible security. It now appears unlikely Congress will take decisive action to curtail flagrantly egregious surveillance practices that were authorized through prior legislation and which remain in effect today.
Preventive Failure
In retrospect, did post-9/11 domestic surveillance provide the U.S. with any effective protection from the 2009 Fort Hood shooting, the 2009 Northwest Air Flight 253 underwear bomber, the 2010 Times Square car bomber, or the 2013 Boston Marathon bombers? Did comprehensive global surveillance prevent the Charlie Hebdo and Jewish market massacres in France?
The U.S. national security strategy against terrorism is certainly not fool-proof and likely is exacerbated by former NSA Director Keith Alexander's "collect it all" surveillance approach. That strategy requires massive amounts of yottabytes to be stored in large facilities including the 1,000,000+ square foot Utah Data Center, the 94,000 square foot San Antonio Data Center, the 600,000 square foot Fort Meade Data Center, and NSA's planned 2,880,000 square foot East Campus at Fort George G. Meade, Maryland.
The resulting data glut clouds the search with irrelevant data and impedes uncovering and interdicting emerging terror plots. The comprehensive collection of all the world's communications and wide focus on parties within "a second or third hop query" from known targets remains a messy operating concept -- especially given the burgeoning of various social media -- when so many of the communicants caught up within such winnowing are entirely innocent from any association with terrorism. The result has been that the communications of active terrorism planners have found sanctuary in the data garbage dump created by NSA.
However, there are some plausible explanations for the practice of gathering and storing all the world's communications. The resultant repositories can provide a comprehensive historical body of information source for analyzing communications transactions for the entire post-2001 activities of any person, friend or foe. Although this does not help to "connect the dots" that might prevent a terrorist attack, after-the-incident investigators can benefit from non-constitutional "laws" and often secret interpretations of those laws.
NSA data is routinely shared with law enforcement in some cases to help target and launch investigation of non-terrorism related (e.g., drug trafficking, tax fraud) criminal suspects. The practice of "parallel construction" can hide the fact that NSA-collected data was instrumental in tipping law enforcement and providing the original indication of criminal activity. But this practice arguably circumvents citizens' Fourth and Fifth Amendments rights.
A second useful application of such comprehensive communication repositories is that it can assist forensic investigations into terrorist events after they've occurred. It may have value in more quickly identifying individuals associated with the subjects responsible for past events. But for interdicting terrorist activity in advance, Keith Alexander's approach remains too unfocused, and any successes achieved will be more likely attributable to chance.
Snowden Revelations
A sampling of Snowden revelations documented by Glenn Greenwald in his 2014 book, No Place to Hide, reflects the extent to which the U.S. Government has trampled on the Constitution...
--Page 30. When repeatedly questioned by members of the Senate Select Committee on Intelligence seeking an estimate of how many Americans were subjected to having their phone calls and Internet traffic collected, intelligence officials responded that they did not maintain such data. Such denials proved to be clear cases of contempt of Congress as evidenced by the revelation of the BOUNDLESS INFORMANT program, an NSA system that maintained statistics on daily telephone and email collection activity. One example reflected one element in NSA had obtained more than three billion communications "from US communication systems alone" during a 30-day period in early 2013.--Page 98. Former NSA Director Keith Alexander's goal of mastering the Global Network by collecting all communications traffic can be seen as progressing smoothly based on a 2012 chart entitled "Example of Current Volumes and Limits." The chart boasts collection of approximately 25 billion Internet sessions plus 15 billion telephone communications for early May 2012. These figures represent daily collection activity that is acquired, stored, and subjected to some cursory analysis.
--P. 111. The PRISM program targets Internet transactions by accessing the storage files maintained by ten popular and cooperative application service providers. One message excerpt reflects that PRISM was the most credited source of all NSA collection assets in fiscal year 2012 and cited to have contributed 15.1% of all intelligence reports issued. Anyone who has used Gmail, Facebook, Hotmail, Yahoo, Google, Skype, Paltalk, YouTube, AOL, or Apple applications on a computer or smart phone since September 2001 can assume their activity is safely stored in a Government data warehouse for retrospective search and analysis whenever the need arises, be it for legitimate legal purpose, some form of abusive harassment, or blackmail.
--P. 114. Although the post-9/11 rationale for warrantless domestic surveillance was for supporting the war on al Qaeda and terrorism, an April 3, 2013 message announcing that PRISM processing of Skype collection had been applied in NSA reporting with "terrorism, Syrian opposition and regime, and exec/special series reports being the top topics" and that over 2,000 reports had "been issued since April 2011 based on PRISM Skype collection." This evidence is a bold admission that the original justification for extensive domestic surveillance for interdicting al Qaeda has experienced broad mission creep.
--P. 116. The unconstitutional law enforcement practice of aiding criminal investigations through the use of "parallel construction" using NSA data was first reported by Reuters on Aug. 5, 2013. That report identified the existence of the Special Operations Division composed of two dozen partner agencies including NSA, CIA, FBI, DEA, IRS, and DHS.
A message entitled "Expanding PRISM Sharing With FBI and CIA" dated Aug. 31, 2012, announced that NSA's "Special Source Operations (SSO) has recently expanded sharing with the Federal Bureau of Investigations (FBI) and the Central Intelligence Agency (CIA) on PRISM operations via two projects. ... The FBI and CIA then can request a copy of PRISM collection from any selector, as allowed under the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act law." Thus, law enforcement entities have access to data gathered under the guise of laws enacted to counter terrorism to investigate non-terrorism related criminal activities.
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