State Secrets Culture and Warrantless Wiretapping

In the days following 11 September 2001, many things changed in the United States. The terrorist attacks that took place on that day quickly prompted tightened security and, crucially, heightened use of surveillance tactics.

It is now well documented how eavesdropping agency the National Security Agency (NSA) was given unprecedented authority to intercept communications flowing to and from the country after 9/11. As the New York Times reported in its 2005 exposé: "The international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to al Qaeda."

This revelation led to a lawsuit (Jewel v. National Security Agency) which alleged the US government was engaged in "the biggest fishing expedition ever devised, scanning millions of ordinary Americans' phone calls and emails for 'suspicious' patterns." The lawsuit was originally dismissed back in 2010 on the grounds that it didn't sufficiently allege "personal injury" was caused by the warrantless snooping. However, this decision was later reversed and now an appeals court is taking another look at the case.

As it has done previously, the US government is asserting its state secrets privilege as part of an attempt to stop the case moving forward. In a motion to dismiss submitted to the appeals court earlier this month, the government said that invoking the privilege was necessary "in order to prevent exceptionally grave damage to national security." It denied the allegation that it had "indiscriminately collected the content of millions of communications sent or received by people inside the United States." But added that it could not prove this before a court because doing so would "risk or require the disclosure of highly classified NSA intelligence sources and methods."

Such claims from the NSA are not new. The agency has a track record of arguing it is entitled to avoid public scrutiny because doing so would pose some sort of grand danger. Back in 1998, for instance, the agency admitted it had spied on Princess Diana and was holding more than a thousand pages of documents in a "Diana file." But the NSA declined to disclose the information held about the Princess because it would reveal — you guessed it — "sources and methods."

The problem with the NSA's position is that it is questionable. The NSA seems to think that disclosing even the slightest detail about what it is doing would aid people who are engaged in plotting against the US. But organised terror groups or oppositional foreign government agents will already presume that every phone call they make and email they send can be intercepted by agencies like the NSA. And besides this, many of the NSA's clandestine methods can be learned by anyone with access to Google because of details made public by whistleblowers. A sworn 2006 declaration by a former engineer for the AT&T telecom firm, for example, stated the NSA was routing AT&T communications through a secret "secure room" where they could be intercepted. This, a former NSA employee said earlier this year in his own sworn declaration, involved the use of a "Semantic Traffic Analyser," which would allow the NSA to mine "addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and phrases" from within the data flowing through communication networks.

So given that such detailed information is already in the public domain about the NSA's snooping activities, the "sources and methods" justification for secrecy seems at best naive, at worst disingenuous.

The knee-jerk reaction of governments and groups with power is often to resort to secrecy in order to avoid controversy, to protect reputations, and to ultimately avoid accountability. That's why the use of state secrets to protect the NSA's wiretapping program from public scrutiny in a court looks suspect — particularly as the US government has form abusing official secrecy to conceal scandals.

As was revealed by the British politician David Davis during an astonishing speech in the UK parliament in March this year, the very same state secrets privilege currently being put forward to protect the NSA from court was previously used as part of an extraordinary cover-up involving US intelligence agencies (including the NSA).

In the late 1990s, as part of a covert effort called Operation Foxden, the FBI, the NSA and the US Central Intelligence Agency (CIA) were working with three businessmen — one Afghan-American citizen, two British — to introduce telecommunications infrastructure into Afghanistan. They planned to rig it with extra circuits in order to listen live to every landline and mobile phone call across the whole of the country. But there was a turf war between the three US agencies, which led to Operation Foxden being delayed some 20 months. It is believed, had it been introduced earlier, it may have helped gather intelligence about the 9/11 terror plot — possibly preventing it from ever happening.

The businessmen involved in helping set up the Afghan network later had a dispute over money, which in 2002 ended up being taken to a court in New York. A year later, the case was suddenly shut down by a judge who cited the state secrets privilege. It turned out that the two British men involved in the deal — Stuart Bentham and Michael Cecil — were being defrauded by the Afghan-American, Ehsanollah Bayat. But they were not allowed to have their case heard in court because the US government did not want its secrets laid bare — in this case showing that a dispute between the intelligence agencies had delayed a massive spy project that might have helped prevent a catastrophic terrorist attack.

Last year, a Vanity Fair writer found out some details about Operation Foxden and approached the CIA for comment about it. Surprisingly, given the previous iron-fisted attempt to keep the story secret and out of courts, the CIA made no attempt to suppress Vanity Fair's report. Why? According to a US source quoted by David Davis in his speech to the British parliament on the subject: "Ten years have passed since 9/11, and the culpable people have moved on, so it’s no longer embarrassing."

The short remark was as shocking as it was revealing. As Davis noted:

This demonstrates only too clearly that although the aim of the American state secrets privilege is to protect national security, in practice it is often used to eliminate embarrassment — political, bureaucratic, organisational or individual embarrassment at past failures ... It also shows how giving a government agency an absolute right to secrecy encourages bad behaviour. The American agencies could easily have stopped the defrauding of British citizens without the matter going to court, given their enormous leverage in the matter. Instead, they chose to suppress justice.

Could the current attempt to stop the case against the NSA over the domestic surveillance programme be a similar bid to "suppress justice" and protect reputations? It is not a far-fetched possibility. One key figure in the warrantless wiretapping saga has even openly gloated about how he is pleased state secrets privilege is being used to shield him. General Michael Hayden, who was the director of the NSA between 1999 and 2005, said with a smirk a few weeks ago that he was "personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts."

Perhaps most alarming, though, is the bigger picture at play here. When any democratic government repeatedly resorts to secrecy to protect the disclosure of information the public has a right to know, it has lost its way. It is broken, existentially fractured. In my own experience as a journalist, the US has a stronger culture of freedom of information than the UK does, but at the highest echelons of power there remains a definite absence of transparency and accountability. The ongoing surveillance case, and the aggressive bid to suppress it, is only the latest example.

Ex-US Spy Chief On Surveillance, Rendition, and Targeted Killings

Secret black sites, illegal surveillance of American citizens' communications, waterboarding — General Michael Hayden overseen it all, and he doesn't have a single regret.

Between 1999–2005 Hayden was director of US eavesdropping agency the NSA, and between 2006-2009 he was director of US spy agency the CIA. He served under the presidencies of Bill Clinton, George W. Bush, and Barack Obama.

On Friday, Hayden, who is now retired, gave a speech at the Gerald R. Ford School of Public Policy in the state of Michigan. Over the course of about 60 minutes, he reflected at length on everything from extrajudicial killings of suspected terrorists to extraordinary renditions (or kidnapping) of suspected al-Qaeda members. It was an unapologetic speech that occasionally verged into sociopathic territory. It was also, at times, revelatory.

Here are a few highlights:

Approximately two hours after the first terror attack on New York in September 2001, Hayden used his authority as chief of the NSA to "dial things up" and get more "aggressive" with communications interception. This prompted a colleague at the CIA to tell him, jokingly, that he was "going to jail," and in turn led President George W. Bush to authorise the domestic wiretapping program that permitted the NSA to spy on emails and phone calls of Americans without a warrant.

Hayden is "personally grateful" to President Barack Obama for protecting him from being held to account in a court of law by invoking state secrets privilege.

A 2008 amendment to the Foreign Intelligence and Surveillance Act "legitimated" everything president Bush had authorised the NSA to do regarding the domestic wiretapping of communications and "gave the NSA a great deal more authority to do these kinds of things."

Hayden says there has been "powerful continuity" between the counter-terror tactics used by President Bush and President Obama, including on extraordinary rendition. However, he said one area of discontinuity is that Obama has a preference for killing terror suspects as opposed to capturing them — because it is now considered "so politically dangerous and so legally difficult" to capture.

On 11 September 2001, the day of the Twin Towers attacks, Hayden explained how he stood behind blacked out curtains at an NSA building in Washington and thought to himself, "things are going to be different around here tomorrow. We have entered into an entirely new era."

Within about two hours of the first plane striking the first World Trade Center tower that morning, Hayden said he had used his authority to "dial things up a little bit" at the NSA in order to give the agency "a higher probability we would intercept those kind of messages that would tell us about the next attack." Hayden didn't elaborate exactly on what it means to "dial things up," but I think it's safe to assume it means intercepting a much larger volume of communications. (Hayden said that because he had "dialed things up" then-CIA director George Tenet a few days later joked to him that he was "going to jail" but President Bush and Vice-President Dick Cheney said it was alright because they would "bail him out.")

In the weeks ahead, President Bush gave Hayden more powers. This led to the domestic wiretapping scandal revealed by the New York Times in 2005, which exposed how the NSA had been granted authority to spy on "the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to al Qaeda."

But that was just the start. And despite the controversy around the domestic wiretapping exposed by the New York Times, as Hayden said in his speech, a 2008 amendment to the Foreign Intelligence and Surveillance Act "not only legitimated almost everything President Bush had told me to do under his article two authorities as commander in chief but in fact gave the NSA a great deal more authority to do these kinds of things."

Aside from the surveillance, Hayden also overseen a variety of other ghoulish new tactics brought in amid the terror fears. There was the kidnapping, or extraordinary rendition, of suspects from one country to the other — often to countries where they were allegedly subject to torture, like Egypt and Libya. There was also the secret black sites — hidden prisons in locations such as Poland and Thailand — where terror suspects were subjected to a variety of so-called 'enhanced interrogation techniques' like waterboarding, which makes a person feel like they are drowning. Not to mention the Guantanamo Bay prison, the indefinate detention of accused terrorists, and the birth of remote-controlled drone strikes as a method of 'targeted killing' or extrajudicial assassination — however you want to term it.

None of this Hayden has any reservations about. In his speech he explained it was all about how America had to "take the fight to the enemy" wherever he (or she) may be. He even recounted a meeting in Germany during the spring of 2007, where he gave a speech to a room of about two dozen people including representatives from every country in the European Union. He spoke about extraordinary rendition and America's tactics in the War on Terror. Not one person present in the room, he said, agreed with any of the justifications he gave for the use of such tactics. But this didn't dissuade him. His essential position could be summarised as, "how could we possibly be wrong?" Perhaps a mindset that can be attributed to American exceptionalism, the belief that the US has a unique mission in the world to spread its ideals.

Hayden was evidently not preoccupied at all with minor irritations like human rights obligations and international law. Rather, he explained how his main concern was in early 2009, when Barack Obama was sworn in to the White House. He was worried that Obama, a Democrat who had voiced strong criticism of George W. Bush's counter-terror policies, might seek to scale back efforts in the War on Terror. Hayden had at this point moved to the CIA, where he was director. But his fears about Obama being a soft touch were quickly alleviated.

Obama continued almost all of Bush's policies, Hayden explained, because he realised "we are at war" with al-Qaeda and its affiliates. In the end, there was a "powerful continuity" between Bush and Obama, Hayden said.

"Targeted killings have continued, in fact if you look at the statistics targeted killings have increased under Obama" ... "renditions, that's the extrajudicial movement of suspected terrorists from place A to place B — our policy is the same under President Obama as it was under President Bush and President Clinton."

He went on: Obama "didn't shut Guantanamo" and he also took the same position as Bush on "indefinite detention and state secrets" ... "I am personally grateful to Obama for using the state secrets argument to stop some of these court proceedings — because I am personally named in some of these courts."

Perhaps most revealing, the one discontinuity between Bush and Obama from a counter-terror perspective, Hayden said, was (and is) the difference between the presidents when it comes to killing or capturing terror suspects. Under Bush many suspected insurgents were captured, incarcerated and interrogated. Under Obama, according to Hayden, just one person has been held outside of Iraq and Afghanistan since January 2009. Obama has been accused of preferring to kill than capture, though this is something he has denied. He said in a recent interview that "our preference has always been to capture when we can because we can gather intelligence" but that it’s sometimes "very difficult to capture them."

According to Hayden, however, the kill rather than capture policy is a political decision.

"We have made it so politically dangerous and so legally difficult that we don't capture anyone anymore. We take another option. We kill them," he said. And in a thinly veiled criticism of Obama's aggressive killing policy, Hayden added: "We're losing the opportunity to interrogate and to learn about our enemy."

listen to ‘Former CIA/NSA chief on Obama's kill/capture policy’ on Audioboo

When you weigh up Hayden's comments, the essence of what he is saying is quite extraordinary. This is a man who openly admits has has no qualms whatsoever about some of the most brutal and contentious tactics that have been used by the United States over the last decade or so. The wiretapping, the renditions that contravene international law, the interrogation techniques widely considered to constitute torture, the extrajudicial killings in countries like Pakistan, Yemen and Somalia, where there has been no formal declaration of war. And here he is applauding Barack Obama, a president elected on a platform oppositional to many of these tactics, for keeping up a "powerful continuity." In fact, his only criticism of Obama is that he is doing too much killing.

The other thing that struck me about Hayden in this speech was his general demenour. The way he was making quips and smirking about how he was thankful Obama was protecting him from being held to account in American courts over the actions of the agencies he was in charge of. There was an arrogance about his comments, an air of impunity. Hayden came off as a man with an almost sociopathic disdain for the basic rule of law.

His justification for the controversial tactics was simple: al-Qaeda and its affiliates constitute a "new threat to old institutions." Terror groups have no regard for laws like the Geneva Convention and blur the distinction between civilian and combatant. Therefore, and this is the core logic underpinning Hayden's remarks, America's security apparatus has to do the same. It has to evolve (or, rather, regress) and "take the fight to the enemy" using whatever means necessary.

The problem is that there is no conclusive evidence anywhere to suggest that this is a successful method of combating the threat in the first place. Killing people and indefinitely detaining them, implementing secret systems of mass surveillance — these are things that have lowered America's standing in the world. If you flout the rule of law, if you sink to a level of legal nihilism, you immediately lose the moral high-ground. You also make more enemies than friends. As we are seeing with US drone strikes in Yemen, where many civilians have been killed by American missiles, the US may only be inspiring a new generation of Jihadists by spreading fear across entire regions of countries while pursuing small handfuls of men who have been deemed a threat through a process that is itself contentious and conceivably highly flawed. Hayden seems convinced that what he presided over at the NSA and CIA was right, just, and absolutley necessary to protect America. But he has not won the argument and I don't think he ever will.

He told the audience at one point that they, as Americans, in reference to the CIA, were "blessed as a people with the talent and the morality of the folks who are in your chief espionage service." I couldn't help recall at this point the case of a Muslim cleric known as Abu Omar. He was accused of plotting terrorism and snatched by CIA agents from a street in Milan, Italy in broad daylight on 17 February, 2003. Omar was taken to Egypt where he was imprisoned in Tura, 20 miles south of Cairo, and handed over to Egyptian security services. He said he was twice raped, suffered electroshock treatment and lost the hearing in his left ear due to repeated beatings. He was eventually released by the Egyptian government in 2007, after a state security court ruled that his detention was unfounded. There are many cases similar to this. All of them call into question the morality of those involved, and that includes General Michael Hayden and the staff he commanded.

Encroaching Constant Surveillance 'Scares' Senior Clinton Adviser

Some interesting remarks were made last week by Alec Ross, a senior adviser to US secretary of state Hillary Clinton. In an interview aired Thursday on C-SPAN, Ross spent a few minutes dealing with some of the big questions around surveillance technologies, control, and the Internet.

Ross acknowledged the incremental advance of "near constant surveillance" was something that personally "scares" him. He also claimed the US restricts the sale of technologies that can be used "to oppress people in countries where we have sanctions," though admitted that stopping repressive nations getting their hands on surveillance tools was difficult: "There are a lot of vendors out there now... we can restrict the sale of exports from American companies... But then they [oppressive governments] are able to turn around and buy it from another country."

He went on to add that a fundamental problem is that the surveillance industry has become a multi-billion dollar industry: "It's a very remunerative environment... Whenever you've got that much money at play, there are going to be people who are trying to make the money."

Here's a transcript (plus audio):

I think that as networking technologies become increasingly powerful and increasingly ubiquitous, their ability to oppress a people also grows. You know, you can't take a utopian view of the Internet and of network technologies. In fact, a government with malignant intent can bend these networks to infiltrate, monitor and manipulate what's happening there, and to surveil its citizens.

This is something that, let me be blunt, it really scares me. I've got a five year old, a seven year old, and a nine year old, and the world that they grow up in is going to be a very different one that the world that I did, in terms of hyper-transparency and in terms of near constant surveillance.

The responsibility of the State Department - there are a couple of things. First of all we restrict the sale of technologies which can be used to oppress people in countries where we have sanctions. In other cases there are export controls, where we can help inform the licensing of certain products and services.

But in your question you made the right point. Certain of the use of these technologies are utterly benign. So the same thing which can be used to inspect a packet to determine whether people are organising a protest can also be used to reasonably filter out spam. So you've got to remember that the very same technologies that can be used for reasonable and benign purposes can also be used for malignant purposes.

[What's an example of one of those technologies that might be restricted?]

There are a variety of different technologies that governments - the Syrian government, the Iranian government, and others - have tried to access, either from the United States or from Europe. The problem is, just to be blunt, there are a lot of vendors out there now. You know, we can restrict the sale of exports from American companies. I'm really glad that the Europeans have joined us in similarly restricting sales of a lot of things from Europe, to certain of these oppressive environments. But then they are able to turn around and buy it from another country.

You know, there are not two or three or four companies out there selling gear. And it's a very remunerative environment. I mean there are countries around the world who are spending billions - tens of billions of dollars – to try to monitor its information environment. Whenever you've got that much money at play, there are going to be people who are trying to make the money. And so this has been a big problem.

listen to ‘Clinton Adviser Alec Ross on Surveillance’ on Audioboo

No doubt some people will be quick to call out Ross for his remarks. Why? Well, for starters, US technology used to monitor and censor the Internet has made it into the hands of despots despite US trade embargoes. Several US companies also participate in ISS World, a series of international surveillance industry conferences organised by an American businessman, where governments from all corners of the globe come to purchase the latest spy tools and learn about new surveillance techniques. And the US itself is hardly a surveillance-free zone. Serious questions remain unanswered about a new National Security Agency data centre in Utah which it is alleged will intercept and store "complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital 'pocket litter'." Not to mention the role so-called 'Fusion Centres' play across the US, monitoring 'suspicious activity' and keeping tabs on social networks. I could go on...

That said, Alec Ross is one of a tiny handful of political figures who appears to be clued up on the complex issues - political, moral, technological, legal - around surveillance and its rapid, incremental encroachment across the world. You will see few senior political figures in any country talking publicly on this topic as Ross does, and that in itself is worth something.

Last year, for instance, I interviewed Jerry Lucas, the American who organises the ISS World surveillance conferences. During the interview, extracts from which were later published in an article for the Guardian, Lucas gave some freakishly blasé responses to my questions about surveillance tools being sold to repressive governments. He was dismissive of human rights concerns, compared mass surveillance tech to "cars and trucks," and said that "you can't stop the flow of surveillance equipment." Shortly after, Alec Ross issued a stern public condemnation of the businessman's comments, telling him he should "be more thoughtful about the consequences of his beliefs. With all due respect, Mr. Lucas, people are tortured + there can be life/death consequences to sales of these products."

Of course, actions speak louder than words. More could certainly be done by legislators in the US to crack down on, and hold to account, companies exporting surveillance technology to places where it may be abused. And, as mentioned above, the US has its own serious, unresolved domestic issues regarding surveillance.

However, at the very least it is somewhat reassuring to know that there is a senior adviser in the State Dept. who seems to have a grasp on the basic fact that there is a problem. In the UK that is far from the case, which is a cause for considerable concern. I can't name one senior British political figure - or an adviser to a senior figure - who has spoken out about the myriad problems heralded by the booming surveillance industry. Advisers in London could probably learn a thing or two from Ross by trying to engage with the subject in a public forum. But I won't be counting on that happening any time soon.

Yemen: Drones, Death And Secrecy

There have been a flurry of drone missile strikes conducted by the United States in Yemen over the the last week. Attacks on Tuesday, Wednesday and Friday resulted in up to 18 fatalities, according to London's Bureau of Investigative Journalism.

The attack on Wednesday in particular caught my eye. It was reported that a vehicle was targeted while travelling on an inner city road in Hadramawt, eastern Yemen, killing five "suspected militants," the country's military officials said.

However, Yemen's press were quick to report that among the dead were two civilians. One was a mosque caretaker and imam named Salim Ahmad Jaber, the other a police officer, Walid Abdullah bin Ali Jaber, according to details posted online by Yemini lawyer Haykal Bafana. Bafana wrote that the car was targeted as it was driving between houses, and the caretaker and policeman were in a house that was hit. Reuters reported local residents saying that "the car was struck by one of three missiles fired from a plane ... charred bodies were pulled from it afterwards." Pictures published by Yemeni news outlet Dammon purported to depict children playing in the mangled, burnt out and blackened remains of the car, a Suzuki Vitara.

This strike stands out as an acute example of why drone attacks can be deeply problematic. In the immediate aftermath of Wednesday's attack it was widely reported that a number of suspected militants had been obliterated in a new drone strike. Yet it later transpired that among the "suspected militants" there may have been two civilians. The concern is that, seemingly by default, unnamed "military sources" have a tendency to promptly announce that "suspected insurgents" or "militants" were the victims in any given strike - but how can we know for sure? We can't, as Wednesday's incident illustrates, and that's why scepticism about claims made by anonymous military sources is always necessary.

As is so often the case with drone strikes, it is almost impossible to confirm details for a number of reasons. 1) The bodies end up badly burnt and damaged, meaning identities of victims are hard to quickly establish; 2) the strikes can occur in dangerous and remote locations, in places where news outlets have a limited presence and facts are not forthcoming; and 3) the perpetrators of drone strikes in Yemen, the US CIA, conduct their actions and pick their targets behind a cloak of secrecy. (NB: Even the UK's Ministry of Defence has acknowledged there are "immense difficulty and risks" involved in verifying who has been hit in drone strikes. The MoD says it cannot tell exactly how many how many alleged insurgents it has killed using drones in Afghanistan.)

So the situation in Yemen is as follows: US forces are covertly bombing people in a country where no formal war has been declared. We do not know (with any certainty) who they are bombing or the justification for each bombing. We do not know exactly how many civilians have been killed in the process (the BFIJ estimates it could be up to 151), or how the pilots who remotely fly the drones from thousands of miles away are held accountable for their sometimes catastrophic errors. This can also be said in other countries that are being subjected the America's covert drone attacks, such as Pakistan and Somalia.

Drone attacks of this kind self-evidently raise profound legal, moral and ethical questions. Unfortunately, the US government presently appears to have very little interest in addressing them.

*****

Incidentally, I put up a short post here the other day about the psychological impact drone strikes conducted by the United States are apparently having on residents of Manzer Khel, a tribal village in North Waziristan, Pakistan. The same can be said of certain communities within Yemen. As a sheikh from Bayhan district in Shabwaare told the Economist in a piece out today: "People are afraid to go to weddings because, whenever large groups of men gather, they are afraid a drone will hit them." And Yemeni news outlet Dammon reported that prior to Wednesday's attack targeting the car in Hadramawt, US drones were spotted, instilling "panic among the citizens of the region."

There could well be blowback. While the strikes are intended to take out terror suspects, by spreading fear among villages and in some cases killing civilians, they may only be serving to recruit greater numbers of terrorists to fight and plot against America and its allies. As the Yemeni lawyer Haykal Bafana wrote on Twitter back in May: "Dear Obama, when a US drone missile kills a child in Yemen, the father will go to war with you, guaranteed. Nothing to do with Al Qaeda."

UPDATE 4.09.12: CNN is reporting that a fresh suspected US drone strike in Yemen has killed 13 civilians, including three women. A senior Yemeni Defense Ministry official is quoted as saying the target was "completely missed. It was a mistake". CNN says that families of the victims closed main roads and vowed to retaliate. Nasr Abdullah, an activist from the district where the attack took place, in the al-Baitha province, told CNN: "I would not be surprised if a hundred tribesmen joined the lines of al Qaeda as a result of the latest drone mistake."