Is the NSA Grabbing All Americans’ Phone Call Content?

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713b1e06029334e8069b128188e013c4_MThe NSA and the Nation­al Direc­tor of Intel­li­gence have con­sis­tent­ly denied that they lis­ten to the con­tent of Amer­i­cans’ tele­phone calls, but the his­to­ry of intel­li­gence agency claims about the scope of its spy­ing on Amer­i­cans is one of lies and more lies. So the ques­tion must be asked: Are they lying again with respect to record­ing the con­tent of Amer­i­cans’ phone calls?

The answer to that ques­tion may be “yes,” and it may be “no.” But there’s also a pos­si­ble “tech­ni­cal­ly, no” response to that ques­tion that’s even more fright­en­ing, for which there is a sub­stan­tial amount of cir­cum­stan­tial evi­dence. First, here are a few of the bla­tant lies the U.S. intel­li­gence appa­ra­tus has pub­licly told to the Amer­i­can peo­ple:

Lie #1: We are not keep­ing Amer­i­cans’ phone data.
Dur­ing a March 12, 2013 Sen­ate hear­ing, Sen­a­tor Ron Wyden asked U.S. Intel­li­gence Direc­tor James Clap­per: “Does the NSA col­lect any type of data at all on mil­lions or hun­dreds of mil­lions of Amer­i­cans?” Admi­ral James Clap­per replied: “No, sir.”

Sev­er­al months lat­er, NSA con­trac­tor Edward Snow­den revealed to the Amer­i­can peo­ple that Clapper’s state­ment was a bold-faced lie. The NSA had, in fact, been col­lect­ing data on hun­dreds of mil­lions of Amer­i­cans under a pro­gram named PRISM, a pro­gram NSA doc­u­ments revealed that also col­lect­ed Inter­net traf­fic “direct­ly from the servers of these U.S. Ser­vice Providers: Microsoft, Yahoo, Google, Face­book, PalTalk, AOL, Skype, YouTube, Apple.” And copies of that data­base, it was lat­er learned, are sent to the U.S. Drug Enforce­ment Agency. James Bam­ford over at The Inter­cept like­wise revealed on Octo­ber 2, 2014 a 40-year his­to­ry of the NSA releas­ing doc­u­ment­ed lies to both the Amer­i­can peo­ple and to Con­gress.

Lie #2: We can’t grab Amer­i­cans’ e-mails.
NSA Direc­tor Gen­er­al Kei­th Alexan­der told U.S. House inves­ti­ga­tors on March 20, 2012, that the NSA didn’t have the “abil­i­ty” to wire­tap Amer­i­cans’ tele­phone calls:

Rep­re­sen­ta­tive Hank John­son (D-Ga.): Gen­er­al Alexan­der, if Dick Cheney were elect­ed pres­i­dent and want­ed to detain and inces­sant­ly water­board every Amer­i­can who sent an email mak­ing fun of his well-known hunt­ing mishaps, what I’d like to know is, does the NSA have the tech­no­log­i­cal capac­i­ty to iden­ti­fy those Cheney bash­ers based upon the con­tent of their emails? Yes or no.
Gen­er­al Alexan­der: No. Can I explain that?
Rep­re­sen­ta­tive John­son: Yes.
Gen­er­al Alexan­der: The ques­tion is where are the emails and where is NSA’s cov­er­age. I assume by your ques­tion that those emails are in the Unit­ed States.
Rep­re­sen­ta­tive John­son: Cor­rect.
Gen­er­al Alexan­der: NSA does not have the abil­i­ty to do that in the Unit­ed States.

The real­i­ty is that the NSA does pos­sess the tech­ni­cal abil­i­ty to record Amer­i­cans, and for­mer NSA con­trac­tor Edward Snowden’s rev­e­la­tions proved that hun­dreds of thou­sands of Amer­i­cans’ tele­phone con­ver­sa­tions have been “legit­i­mate­ly” record­ed by the NSA because one par­ty of the call was abroad. More­over, thou­sands of inno­cent Amer­i­cans’ e-mails have been mon­i­tored by the NSA, accord­ing to infor­ma­tion pro­vid­ed by whistle­blow­er Edward Snow­den. Indeed, the capac­i­ty to wire­tap American’s phone lines and record the full audio from them is present on a wide­spread basis, as the NSA pro­gram SOMALGET wire­taps the full audio from every call in and out of the nation of the Bahamas (and the NSA grabs meta­da­ta from the same pro­gram from all calls in Mex­i­co, Kenya, and the Philip­pines).

Lie #3: CIA wouldn’t hack into U.S. Sen­ate com­put­ers.
As the U.S. Sen­ate con­duct­ed its over­sight of the Bush-era deten­tion poli­cies under the CIA, Sen­a­tor Dianne Fein­stein (D-Calif.) charged the CIA with spy­ing on Sen­ate com­put­ers and delet­ing mate­r­i­al on those U.S. Sen­ate com­put­ers. “As far as the alle­ga­tions of the CIA hack­ing into Sen­ate com­put­ers, noth­ing could be fur­ther from the truth,” CIA Direc­tor John Bren­nan told Andrea Mitchell at a Coun­cil on For­eign Rela­tions forum March 11, 2014. It lat­er came out that Feinstein’s charges were the pre­cise truth, and Bren­nan had told a bold-faced lie.

Lie #4: NSA wire­tap­ping author­i­ty has nev­er been abused.
“There is no abuse,” for­mer NSA Direc­tor Michael Hay­den told NBC’s Meet the Press on Decem­ber 15, 2013. Pres­i­dent Oba­ma him­self denied the NSA had abused its sur­veil­lance capa­bil­i­ties in an address to the nation on August 9, 2013: “If you look at the reports — even the dis­clo­sures that Mr. Snow­den has put for­ward — all the sto­ries that have been writ­ten, what you’re not read­ing about is the gov­ern­ment actu­al­ly abus­ing these pro­grams and lis­ten­ing in on people’s phone calls or inap­pro­pri­ate­ly read­ing people’s emails. What you’re hear­ing about is the prospect that these could be abused. Now, part of the rea­son they’re not abused is because these checks are in place, and those abus­es would be against the law and would be against the orders of the FISC.”

But it soon came out that there have been thou­sands of cas­es of abuse of that intel­li­gence on Amer­i­can cit­i­zens from inter­nal NSA reviews of the infor­ma­tion. In some cas­es, this involved tak­ing audio from tele­phone calls of Amer­i­cans by sus­pi­cious lovers in the employ of the NSA, accord­ing to a sum­ma­ry pro­vid­ed to Sen­a­tor Charles Grass­ley (R-Iowa): “In 2004, upon her return from a for­eign site, the sub­ject report­ed to NSA Secu­ri­ty that, in 2004, she tasked a for­eign tele­phone num­ber she had dis­cov­ered in her husband’s cel­lu­lar tele­phone because she sus­pect­ed that her hus­band had been unfaith­ful. The task­ing result­ed in voice col­lec­tion of her hus­band.”

So in light of the many lies of our intel­li­gence offi­cials and the politi­cians over­see­ing them, it’s quite pos­si­ble that the NSA could be lying — again — with respect to its gath­er­ing, reten­tion and search of Amer­i­cans’ con­ver­sa­tions as it did with phone records “meta­da­ta.”

Tag-team Approach to Sur­veilling Amer­i­cans
But there’s anoth­er pos­si­ble expla­na­tion for the NSA fol­low­ing legal pro­to­col, as claimed in pub­lic, where it nev­er­the­less has indi­rect access to Amer­i­cans’ phone calls: It’s pos­si­ble the NSA has an agree­ment with for­eign intel­li­gence agen­cies to spy on Amer­i­cans in exchange for U.S. sur­veil­lance of their pop­u­la­tions, with an agree­ment to exchange the infor­ma­tion. Con­sid­er the pos­si­bil­i­ty that the NSA — which like the all-see­ing eye of Sauron in the Lord of the Rings tril­o­gy — is faced out­ward sur­veilling the world while the oth­er two pairs of the “Five Eyes” part­ners (the U.K., Cana­da, Aus­tralia, and New Zealand) are focused inward on the NSA’s one blind spot: the Unit­ed States. This may sound like a far-out con­spir­a­cy the­o­ry, but state­ments of part­ner­ship between the Unit­ed States and it allies — espe­cial­ly its Anglo “Five Eyes” allies — make such an arrange­ment plau­si­ble in light of exist­ing legal restric­tions against sur­veilling Amer­i­can cit­i­zens.

The NSA has paid hun­dreds of mil­lions of dol­lars to “Five Eyes” part­ner GCHQ in Britain because GCHQ is “less con­strained by NSA’s con­cerns about com­pli­ance,” accord­ing to intel­li­gence offi­cials who talked off the record with London’s The Guardian for August 1, 2013. Of course, there are no restric­tions what­so­ev­er on NSA sur­veil­lance of for­eign­ers; the only sur­veil­lance restric­tions on the NSA are those against record­ing the audio of Amer­i­cans’ phone calls. Accord­ing to The Guardian, the fed­er­al fund­ing of British intel­li­gence “exploit­ed to the full our unique sell­ing points of geog­ra­phy, part­ner­ships [and] the UK’s legal regime.” The chief ben­e­fit of geog­ra­phy is that Britain is not con­strained by legal restric­tions on spy­ing on Amer­i­cans. A British Cab­i­net offi­cial told The Guardian after the Edward Snow­den rev­e­la­tions that “joint projects in which resources and exper­tise are pooled, but the ben­e­fits flow in both direc­tions.”

GCHQ has already acknowl­edged col­lect­ing mas­sive Inter­net infor­ma­tion on British cit­i­zens under its blan­ket author­i­ty under U.K. law to col­lect “exter­nal com­mu­ni­ca­tions.” What’s to stop them from also col­lect­ing the Face­book and Google traf­fic of Amer­i­cans? Clear­ly, Amer­i­cans’ phone calls and e-mails are “exter­nal” to the U.K. But with­out Amer­i­can assis­tance, the British gov­ern­ment like­ly lacked the tech­ni­cal capa­bil­i­ty for such mas­sive sur­veil­lance, or per­haps lacked the will to invest this lev­el of funds to sur­veil the peo­ple of an ally. In this light, the mas­sive NSA aid to GCHQ and the close part­ner­ship with the Five Eyes coun­tries could be explained. Two pair of the Five Eyes are quite pos­si­bly charged with sur­veilling Amer­i­cans, and then coor­di­nat­ing with their Amer­i­can coun­ter­parts in order to skate around what lit­tle is left of the Fourth Amend­ment to the U.S. Con­sti­tu­tion pro­hibit­ing war­rant­less search­es. In exchange, the NSA shares infor­ma­tion on their peo­ple, as well as infor­ma­tion on oth­er nations where the Unit­ed States sur­veils and our allies don’t have sur­veil­lance capa­bil­i­ties.

Sim­i­lar rela­tion­ships have been report­ed among America’s oth­er allies. The Wash­ing­ton Post report­ed on Octo­ber 30, 2013, “In France, the dai­ly Le Monde report­ed Wednes­day that France’s exter­nal intel­li­gence agency col­lab­o­rat­ed with the Unit­ed States start­ing at the end 2011 or begin­ning of 2012 to pro­vide a win­dow into Inter­net traf­fic flow­ing via under­wa­ter cables that sur­face in France.… The cables car­ry much of the Inter­net traf­fic that flows to Africa and Afghanistan, the news­pa­per said. In exchange for allow­ing access to the traf­fic, the NSA pro­vid­ed infor­ma­tion about areas of the world where France has no intel­li­gence pres­ence, the news­pa­per report­ed.” What areas that involved, the arti­cle didn’t spec­i­fy. Clear­ly there are many areas the mas­sive resources of the NSA could help the French intel­li­gence agen­cies. But if the French intel­li­gence agen­cies are will­ing to sell out the pri­va­cy of their peo­ple in exchange for more intel­li­gence shar­ing, why should Amer­i­can intel­li­gence agen­cies be immune from such a deal?

Indeed, Amer­i­can intel­li­gence offi­cials have pub­licly expressed a rather blasé atti­tude toward for­eign intel­li­gence agen­cies spy­ing on Amer­i­cans. In an Octo­ber 29, 2013, hear­ing before the House Select Com­mit­tee on Intel­li­gence, Direc­tor of Intel­li­gence James Clap­per respond­ed to this ques­tion from Chair­man Mike Rogers (R-Mich.):

Mike Rogers: Do you believe that the allies have con­duct­ed or at any time any type of espi­onage activ­i­ty against the Unit­ed States of Amer­i­ca — our intel­li­gence ser­vices, our lead­ers, oth­er­wise?
Clap­per: Absolute­ly.… And I have to say, Chair­man Rogers, that some of this reminds me a lot of the movie Casablan­ca. “My God, there’s gam­bling going on here!” You know, it’s the same kind of thing.

The state­ment above proves that Clap­per is aware of allied intel­li­gence agen­cies spy­ing on Amer­i­cans, an activ­i­ty the agen­cies he con­trols are pro­hib­it­ed from doing. But it also leaves open the ques­tion of how much of that spy­ing (and shar­ing of that intel­li­gence) is done on a for­mal­ized part­ner­ship basis, and how much is done on an ad hoc basis. If the NSA is lying about its restraint from col­lect­ing the audio of Amer­i­cans’ phone calls, a vig­or­ous part­ner­ship of “we’ll spy on you, if you’ll spy on us” would be unnec­es­sary, as would hun­dreds of mil­lions of dol­lars in aid to GCHQ. But if the NSA wants to sur­veil Amer­i­cans while at the same time for­mal­ly com­ply­ing with their pub­lic pro­nounce­ments, focus­ing two pair of the “Five Eyes” back on Amer­i­cans becomes a real pos­si­bil­i­ty.

The extent of for­eign sur­veil­lance of Amer­i­can phone calls is not known, and won’t be known with­out an Edward Snow­den-like whistle­blow­er from GCHQ or one of the oth­er Five Eyes part­ners. But it’s clear that Con­gress should not take the NSA’s pub­lic pro­nounce­ments at face val­ue, but should inves­ti­gate the lev­el of for­eign sur­veil­lance of Amer­i­cans.