Extraordinary Rendition and the Secret Role of Metadata

On Monday, I had a new story out at The Intercept revealing a secret search engine that the National Security Agency built to share a massive amount of data with other US government agencies, including domestic law enforcement. There are many new and important details scattered through the piece. But there is one in particular I would like to take a minute to focus on here, because it is a fact that strikes at the heart of the debate about government surveillance and deserves some more attention.

In one of the classified documents that we published with the story, dated from 2005, the NSA outlined some of the "successes" of a data-sharing project called CRISSCROSS that was led by the Central Intelligence Agency. The document shows that metadata collected about communications was integral to the CIA's extraordinary rendition program during the Bush Administration, which involved kidnapping terror suspects and taking them to secret "black site" jails where they would be brutally interrogated and sometimes tortured. The NSA document says:

Since 9/11, the contributions to the GWOT [global war on terror] due to our increased collection of signaling metadata are innumerable and significant. It is safe to say that it has been a contribution to virtually every successful rendition of suspects and often, the deciding factor.

This is an incredible detail. Remember, metadata is not the audio content of a phone call or the words contained within the body of an email message. It is merely information showing who you have contacted and when. Governments have often sought to defend the mass-scale collection of metadata by insisting that it is not information that is sensitive or very private. In June last year, President Obama tried to dismiss concerns about metadata collection in the United States by claiming that "nobody is listening to your telephone calls." But, clearly, the government doesn't need to be listening to your calls to deem you a threat. That metadata has been the deciding factor in targeting people for extraordinary rendition is a profound illustration of that — and it shows that metadata collection has real-world ramifications: it is not just some benign activity.

You might think, "well, I'm not a terror suspect so what do I care?" But this is not only about the Bad Guys — there are much wider consequences at play here. During the height of the extraordinary rendition program, for instance, some of the people targeted were victims of what was called "erroneous rendition." In other words, the CIA would kidnap the wrong person. (Yes, seriously.) In 2005, it was reported by the Washington Post that the CIA's inspector general was investigating a "growing number" of erroneous renditions, with some anonymous government officials saying that they believed there were as many as 30 instances of it having taken place.

Much is still unknown about these cocked-up renditions because the information has been kept secret. But now that we know metadata played a key role in targeting people — in some cases even being the "deciding factor" — questions must surely be asked about whether this method was ever to blame. From a legal and human rights perspective, it is disturbing enough that the CIA was secretly kidnapping, imprisoning, and then torturing people. But the possibility of innocent individuals being targeted on the basis of their metadata trail clearly adds a chilling extra dimension. It is a policy of guilt by association that bears all the hallmarks of a kind of terrible and flawed style of totalitarian policing.

Today, the practice of extraordinary rendition appears to have been largely phased out by President Obama. But the concerns raised by the use of metadata to target people are still highly pertinent. Indeed, as The Intercept reported back in February, metadata is actively being used to target and kill terror suspects in drone strikes in countries like Yemen, Pakistan and Somalia. One military source said that the method can result in the "wrong people" being bombed. And if you think that sounds far-fetched — that the US would not launch missiles at people because of their metadata — you don't need to take my word for it. Just go and listen to what former CIA and NSA chief Michael Hayden has to say. As he boasted in April: "We kill people based on metadata."

Guantanamo's Anonymous Censor

When a suspected terrorist mastermind goes on trial at the Guantanamo Bay military commission, strange things can happen.

Last week, midway through the pretrial hearings for five accused 9/11 plotters, an anonymous outside censor unilaterally blacked out an audiovisual feed that provides public access to journalists reporting on the proceedings. The incident frustrated the military judge, who is supposed to have total control over the courtroom, and in the process illustrated the acute tension between open justice and obsessive-compulsive national security secrecy.

Here's how it went down, according to Jason Leopold, a reporter for Truthout who was in attendance:

...the audio feed to the proceedings was interrupted Monday when defence attorney David Nevin, who represents [accused 9/11 planner Khalid Shaikh] Mohammed, discussed the title of an exhibit pertaining to the CIA's secret black site prisons, where the self-professed 9/11 mastermind and his alleged co-conspirators had been held prior to their transfer to Guantanamo.

When Nevin uttered the word "secret," a warning light, which is silent, positioned on the judge's dais, started to flash and the sound of white noise was fed through the audio feed. Moments later, the monitors inside the gallery went black. The outage lasted three minutes. (The courtroom is visible to members of the gallery but is separated by soundproof glass; the audio feed is delayed by 40 seconds).

The judge, Col. James Pohl, was not happy about the act of censorship because he had not approved it. "If some external body is turning the commission on or off based on their own views of what things ought to be, with no reasonable explanation ... then we’re going to have a little meeting about who turns that light on and off," he said, reported the Huffington Post.

The fascinating debacle raised a number of questions, most importantly: who was this mysterious outside censor, watching proceedings from outside the courtroom and able to hit a "white noise" button on a whim? Leopold's report offers the closest thing to an answer:

It was later revealed by the government that the third party monitoring the hearings who was responsible for the interruption ... was the "original classification authority," or OCA, likely a reference to the CIA since that is the agency that operated the black site prisons.

But the government refused to provide information about whether the censor had been monitoring proceedings from a room at Guantanamo or was in fact located somewhere in the United States (like, say, the CIA's headquarters at Langley, Virginia).

"Who is the invisible hand?" asked one of the defence attorneys, not content with the lack of clarity. "Who is the master of puppets?"

It's a question that's difficult to answer with 100 percent certainty, given the secrecy. But whoever was responsible, he or she is not likely to be hitting the blackout button again any time soon. On Thursday judge Pohl ordered the government to unplug any outside censors. “This is the last time that will happen,” he said. “No third party can unilaterally cut off the broadcast.”

A rare triumph for transparency, it seems.

[You can a detailed report about the case, United States v. Mohammed, et al., here, courtesy of the Public Record.]