Trump Administration Says It's Classified If They Can Let The NSA Spy On Americans

from the that's-not-how-this-is-supposed-to-work dept

Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate.

However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

This seems like a kind of important question. 702 on its face, says that it can't be used to target domestic communications. Literally, the law says this: "An acquisition authorized under [this statute]... may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

But, as we've learned, when Senator Wyden asks an "is this happening?" question -- the answer is always "yes." And, once again, it appears that Coats is playing games. Coats responded to that question at the time saying: "Not to my knowledge. It would be against the law." That seems like a pretty clear and definitive answer: "no." Which is as it should be.

But then... something weird happened. The very next day, Coats' office put out a "clarifying" statement (ruh roh...), saying that Coats had "interpreted" Wyden's question to be referring specifically to Section 702(b)(4) (the part that says you can't spy on domestic communications). But, that's not what Wyden had asked. He had asked about the entirety of 702. So this "clarification" certainly seemed to suggest that Coats' original answer was incorrect in regards to the actual question, and instead, his staff was rewriting Wyden's question to make sure he had answered it accurately.

In other words, it appears that Coats put himself in a Clapper-position, of mistakenly claiming that the NSA isn't spying on Americans under a specific authority when it absolutely is -- and the reinterpretation of the question was his retroactive attempt to make his answer "truthy."

Not surprisingly, this didn't please Wyden, who quickly asked Coats to officially answer the original question with a yes or no, and not the reinterpreted question his office claimed he had answered.

Coats has now sent "an answer" but not a good one. He's now claiming that it's classified, and also takes some weird shots at Wyden for asking such a question in the first place:

Dear Senator Wyden: In response to your letter of July 31, 2017, I would note that I responded to your question publicly both at the Senate Select Committee on Intelligence's open hearing on June 7, as well as in an unclassified letter to you on June 8. However, in further conversations with you and your staff, including at a closed budget hearing on June 15, it became clear that you already had the specific information that you were seeking, but this information was classified. In an effort to be responsive to you, I committed to assessing whether the sources and methods information you were asking for could be publicly released. After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24. This response also discussed, at length, why the information is properly classified and cannot be publicly released. I want to stress that the Intelligence Community takes seriously its obligation to faithfully execute collection under Section 702 consistent with the Constitution and statutory requirements. We also take seriously our obligation to ensure Congress has all the information - both publicly available and classified it needs to conduct oversight of this program. While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter. Sincerely, Daniel R. Coats

Now, for those of you thinking "okay, it makes sense that we can't reveal classified information that might harm national security," let me remind you of the question that Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

Okay. So please explain how a simple yes or no answer to that can be classified -- especially given the plain language of the law itself? And, of course, this answer -- or, more specifically, the refusal to say "no" -- more or less confirms that the answer is a resounding "YES!" the government believes that it can use Section 702 to collect purely domestic communications, in clear contradiction to the plain language of the law.

Furthermore, if this question is so scary and so dangerous, why didn't anyone -- including Coats himself -- have any problem answering it when it was initially posed back in June? It didn't seem like such a risk to national security then. It's only a risk to national security after Coats' staff realized he misspoke? How, exactly, does that work?

As you might imagine, Senator Wyden is not pleased with this turn of events:

It is hard to view Director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic? What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question. I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security. The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program? This is on top of the administration's recent refusal even to estimate how many Americans’ communications are swept up under this program. The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don't deserve to know when and how the government watches them.

So, uh, who in the NSA is going to play the role of Snowden this time? Once again, it appears we have a Director of National Intelligence claiming no surveillance on Americans under a specific authority, when everything that Wyden is saying indicates that he damn well knows that's not true. Sooner or later someone's going to leak the fact that the intelligence community is lying to the American public in order to spy on the American public.

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Filed Under: dan coats, domestic surveillance, privacy, ron wyden, section 702