The NSA Black Hole: Five Basic Things We Still Don’t Know About the Agency’s Snooping

by Justin Elliott and Theodoric Meyer ProPublica, June 10, 2013, 4:05 p.m.

Last week saw revelations that the FBI and the National Security Agency have been collecting Americans’ phone records en masse and that the agencies have access to data from nine tech companies.

But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:

Has the NSA been collecting all Americans’ phone records, and for how long?

It’s not entirely clear.

The Guardian published a court order that directed a Verizon subsidiary to turn over phone metadata — the time and duration of calls, as well as phone numbers and location data — to the NSA “on an ongoing daily basis” for a three-month period. Citing unnamed sources, the Wall Street Journal reported the program also covers AT&T and Sprint and that it covers the majority of Americans. And Director of National Intelligence James Clapper himself acknowledged that the “collection” is “broad in scope.”

How long has the dragnet has existed? At least seven years, and maybe going back to 2001.

Senate Intelligence Committee chair Dianne Feinstein, D-Calif., and vice chair Saxby Chambliss, R-Ga., said last week that the NSA has been collecting the records going back to 2006. That’s the same year that USA Today revealed a similar-sounding mass collection of metadata, which the paper said had been taking place since 2001. The relationship between the program we got a glimpse of in the Verizon order and the one revealed by USA Today in 2006 is still not clear: USA Today described a program not authorized by warrants. The program detailed last week does have court approval.

What surveillance powers does the government believe it has under the Patriot Act?

That’s classified.

The Verizon court order relies on Section 215 of the Patriot Act. That provision allows the FBI to ask the Foreign Intelligence Surveillance Court for a secret order requiring companies, like Verizon, to produce records 2013 “any tangible things” 2013 as part of a “foreign intelligence” or terrorism investigation. As with any law, exactly what the wording means is a matter for courts to decide. But the Foreign Intelligence Surveillance Court’s interpretation of Section 215 is secret.

As Harvard Law Professor Noah Feldman recently wrote, the details of that interpretation matter a lot: “Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant 2014 which is to say, everything.”

In the case of the Verizon order — signed by a judge who sits on the secret court and requiring the company to hand over “all call detail records” — it appears that the court is allowing a broad interpretation of the Patriot Act. But we still don’t know the specifics.

Has the NSA’s massive collection of metadata thwarted any terrorist attacks?

It depends which senator you ask. And evidence that would help settle the matter is, yes, classified.

Sen. Mark Udall, D-Colo., told CNN on Sunday, “It’s unclear to me that we’ve developed any intelligence through the metadata program that’s led to the disruption of plots that we could [not] have developed through other data and other intelligence.”

He said he could not elaborate on his case “without further declassification.”

Sen. Feinstein told ABC that the collection of phone records described in the Verizon order had been “used” in the case of would-be New York subway bomber Najibullah Zazi. Later in the interview, Feinstein said she couldn’t disclose more because the information is classified. (It’s worth noting that there’s also evidence that old-fashioned police work helped solve the Zazi case 2014 and that other reports suggest the Prism program, not the phone records, helped solve the case.)

How much information, and from whom, is the government sweeping up through Prism?

It’s not clear.

Intelligence director Clapper said in his declassified description that the government can’t get information using Prism unless there is an “appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.”

One thing we don’t know is how the government determines who is a “foreign target.” The Washington Post reported that NSA analysts use “search terms” to try to achieve “51 percent confidence” in a target’s “foreignness.” How do they do that? Unclear.

We’ve also never seen a court order related to Prism — they are secret — so we don’t know how broad they are. The Post reported that the court orders can be sweeping, and apply for up to a year. Though Google has maintained it has not “received blanket orders of the kind being discussed in the media.”

So, how does Prism work?

In his statement Saturday, Clapper described Prism as a computer system that allows the government to collect “foreign intelligence information from electronic communication service providers under court supervision.”

That much seems clear. But the exact role of the tech companies is still murky.

Relying on a leaked PowerPoint presentation, the Washington Post originally described Prism as an FBI and NSA program to tap “directly into the central servers” of nine tech companies including Google and Facebook. Some of the companies denied giving the government “direct access” to their servers. In a later story, published Saturday, the newspaper cited unnamed intelligence sources saying that the description from the PowerPoint was technically inaccurate.

The Post quotes a classified NSA report saying that Prism allows “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” not the company servers themselves. So what does any of that mean? We don’t know.

For more on mass surveillance in America, read our timeline of loosening laws and practices. 

In Key Senate Job, Ex-Lockheed Exec Replaced by Ex-Lockheed Lobbyist

by Justin Elliott ProPublica, April 24, 2013, 12:07 p.m.

Last year, we told you about how former Lockheed Martin executive Ann Sauer had been hired to be the top Republican staffer on the Senate Armed Services Committee.

Sauer got $1.6 million from Lockheed, including a buyout, before being hired by Sen. John McCain to come back to Capitol Hill, where she had previously worked as a staffer. Watchdogs cried foul.

With McCain stepping down as ranking member of the committee, Sauer left the job on the Armed Services Committee earlier this year and now works as a federal budget expert for hire.

Her replacement? Another former Hill staffer who went to work with large military contractors 2014 including Lockheed.

John Bonsell, the new staff director for the Republicans on the committee, spent five years as a lobbyist for military contractors such as Boeing, GE Aviation, BAE Systems, and SAIC. He made $276,400 in 2011, his final year as a lobbyist, a disclosure form shows. Bonsell did not respond to our requests for comment.

Bonsell takes the Armed Services Committee job at an especially fraught time for military contractors: the industry has been fighting 2014 so far unsuccessfully 2014 budget cuts that kicked in under sequestration last month.

Before working as a lobbyist, Bonsell had a two-decade career in the Army including a stint as chief of concepts and doctrine on the Army staff at the Pentagon. After that, he became a legislative assistant to Sen. James Inhofe, R-Okla., in 2001.

In 2007, he joined Robison International, a lobby shop focusing on military issues that is led by a former deputy assistant secretary of defense for legislative affairs named Randall West.

After five years as a lobbyist, Bonsell rejoined Inhofe’s staff in 2012 as legislative director. Earlier this year, when Inhofe took over from McCain as ranking member on the Armed Services Committee, he hired Bonsell to be staff director.

Asked if Bonsell’s previous role as a lobbyist for industry players presents any conflict, Inhofe spokeswoman Donelle Harder said the senator views that work as a plus.

“Due to his 20 plus years of service in the U.S. Army and his post-retirement career, Sen. Inhofe finds John Bonsell uniquely qualified to understand the perspective of both the government and the private sector as the committee works to address unprecedented challenges with the future of our national defense,” she wrote in an email.

Inhofe has said that his top priority is to avoid military budget cuts.

Six Claims on Detainee Torture, Skewered

by Christie Thompson ProPublica, April 22, 2013, 4:04 p.m.
Among the news that ended up being buried in the events last week: A nonpartisan think tank, the Constitution Project, released a scathing, 577-page report on the U.S.’s treatment, and torture, of detainees in the aftermath of 9/11. The investigation began in 2009, after Obama opposed creating a “truth commission.”

With a Senate investigation of detainee treatment still classified, the report from the bipartisan task force is the most comprehensive public review to date. The 11-member panel interviewed more than 100 former military officials, detainees and policymakers.

Among their findings: There is no compelling security reason to keep classified details about the CIA’s now-shuttered black prisons. The task force hopes their report will spur more government transparency on the treatment of detainees, starting with the release of the Senate investigation.

Here’s a rundown of previous claims skewered by the report:

Claim No. 1: The U.S. didn’t use torture.

“Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture,” the report concludes. The task force says that despite overwhelming evidence of torture, both government officials and many in the media have continued to present the issue as a two-sided debate.

The task force measured confirmed reports on detainee treatment against several international and domestic legal definitions of torture. The U.S.’s tactics unequivocally amount to torture, they found, under definitions the U.S. itself has used to accuse other countries of the same crime.

Former UN ambassador John Bolton rejected the task force’s findings, telling the Associated Press the report is “completely divorced from reality.” Bolton said a team of lawyers scrutinized the policies to ensure interrogation never crossed the line.

Claim No. 2: When torture happened, it was because of a few low-level “bad apples.”

The report details how the decisions to use “enhanced interrogation” techniques were not rogue entry-level soldiers, but rather came from decisions made at the top of the administration. As a former Marine general told the task force, “Any degree of ‘flexibility’ about torture at the top drops down the chain of command like a stone 2014the rare exception fast becoming the rule.”

Claim No. 3: Only three terror suspects were waterboarded by the CIA.

The task force’s findings support and elaborate on a Human Rights Watch report, which detailed how the CIA tortured at least two Libyans with water and abused several others to “win favor with el-Gaddafi’s regime,” the task force found.

The testimonies of the two Libyans undermine the Bush administration’s repeated claims that the CIA only waterboarded against three people.

Claim No. 4: Torture definitely worked.

Former Vice President Dick Cheney and others have claimed that abusive treatment saved “thousands of American lives.” But the report found no evidence that torture itself was actually useful. As Obama’s former National Director of Intelligence Admiral Dennis Blair wrote, as quoted in the report, “There is no way of knowing whether the same information could have been obtained through other means.”

The movie Zero Dark Thirty, which gets a shout out in the report, has fueled the debate about whether torture ultimately helped the U.S. find Osama bin Laden. Officials have pointed to the tips provided by one detainee, Hassan Ghul, who was beaten and deprived of sleep while held in a secret CIA prison.

But the report is skeptical of the connection. As the report notes, Senator Dianne Feinstein and other officials said key information Ghul provided was “acquired before the CIA used their enhanced interrogation techniques against the detainee.”

Claim No. 5: A third of released Gitmo detainees have returned to terrorism.

Many lawmakers have used the supposedly high rate of detainee recidivism to justify keeping detainees at Gitmo. The government has claimed that nearly a third of released detainees returned to terrorism. But the report noted that Gitmo prisoner shouldn’t be counted as “returning to the battlefield” if they were never there in the first place. A former Guantanamo commander told the panel that up to half of detainees “were mistakes.”

Government stats also include both confirmed and suspected reports of “re-engagement.”  Nor, the report notes, does the government have “firm guidelines” on what counts as a return to terrorism.

Claim No. 6: It’s all behind us.

“We need to look forward as opposed to looking backwards,” Obama said in 2009. But the report details how the ongoing lack of transparency and oversight leaves the door open for abuse. The CIA’s prisons have been closed, but the report notes that the current Army Field Manual on Interrogation contains amendments made in 2006 allow for sleep deprivation, separation and stress positions to be used in interrogation.

The bipartisan task force also concluded that current treatment of prisoners at Guantanamo, such as force-feeding hunger striking inmates and keeping them in indefinite detention, could qualify as torture under international law. The committee couldn’t come to a consensus on whether the prison at Guantanamo should be closed.

Photo: Detainee escorted by guards at US military prison in Guantanamo Bay, Cuba by Getty Images

Hunger Strikes and Indefinite Detention

A Rundown on What’s Going on at Gitmo

by Cora Currier ProPublica, April 18, 2013, 9:45 a.m.

It’s been 11 years since the first detainees were brought to Guantanamo Bay. But the future of the prison, and the fate of the men inside it, is far from certain.  With 59 detainees at Gitmo currently on hunger strike, by the military’s count, here’s a primer on what’s going at the island prison.

What started the hunger strike?

It began after guards allegedly mishandled detainees’ Korans in a cell search in early February 2014 but it’s certainly become about more than the holy books.

The military says detainees have previously hidden “improvised weapons, unauthorized food and medicine” in the spines of the Korans, and that the February searches were standard, conducted by Muslim translators. (Koran searches had set off hunger strikes before, in 2005.)

Attorneys for hunger strikers say the detainees have offered to relinquish their Korans rather than have them searched. The military initially would not accept that option, but now says, “if they choose not to have one, they choose not to have one.”

In any case, just about everyone 2013 from the International Committee of the Red Cross to the general in charge of U.S. Southern Command 2013 agrees the strike comes out of growing frustration and hopelessness among detainees. As we detail below, there are few indications that Gitmo will be shuttered or detainees transferred in the near future. The last detainee to leave Gitmo, last fall, was dead.

General Kelly, of U.S. Southern Command, said last month that detainees had watched Obama’s State of the Union address, and heard no mention of Guantanamo. “That has caused them to become frustrated and they want to … turn the heat up, get it back in the media,” Kelly said.

In an account published in the New York Times last weekend, a Yemeni hunger striker named Samir Moqbel said he hoped “that because of the pain we are suffering, the eyes of the world will once again look to Guantánamo before it is too late.” (Moqbel had recounted his story by phone to his lawyers.)

Another detainee, a Saudi Arabian named Shaker Aamer, also recently wrote an op-ed. Calling himself “a bit of a professional hunger striker,” Aamer said “this one is a whole lot different.” Lawyers say the strike is far more widespread than the military’s count.

According to the military, two detainees have attempted suicide since the strike began.

Have there been clashes between guards and the prisoners?

Yes, most recently last weekend. In an early-morning raid on Saturday, soldiers in riot gear moved about 60 of the detainees from their communal living camp into individual cells. Guards fired four “less-than-lethal” rounds; they say some prisoners wielded makeshift weapons, constructed from broken broomsticks and plastic water bottles filled with rocks.

Military commanders told the Miami Herald that the once “compliant” detainees had been ignoring orders for months, “covering cameras, poking guards with sticks through fences, spraying U.S. forces with urine and refusing to lock themselves inside their cells for nightly sweeps.”

In January, there was an altercation on the facility’s new soccer field, which ended with guards shooting “one non-lethal round” at a group of detainees.

In a statement earlier this week, the military said the detainees were being placed on lockdown to allow for “round-the-clock monitoring.” In recent years, the communal living arrangement had been redone to “feel more like a dorm.” Now, the Miami Herald reports, those men are confined to their cells, without TV, legal documents, and the other things they were previously allowed.

In turn, detainees’ lawyers have said that prison guards became stricter in recent months, and that mail and personal items have been confiscated in cell searches.

An attorney with the Center for Constitutional Rights, Omar Farah, told ProPublica that he and other lawyers feared that the move to individual cells would cut off information about the strike. “The primary way we’ve been getting information is through prisoners’ accounts of one other.”

Are the strikers being mistreated?

At least one detainee has alleged that the hunger strikers are being punished, by being forced to drink potentially unsafe tap water and cold temperatures in their cells. The military disputes that, saying the tap water is safe and bottled water is available. On Monday, a federal judge ruled he did not have jurisdiction to weigh in on the prisoner’s treatment.

What about force-feeding?

As of Wednesday, 15 detainees are being force-fed nutritional supplements through tubes inserted into their noses. The military says strikers “present” themselves for the procedure, though it also says passing out counts as consent.

Others have been tied down for feedings. Moqbel, in his account in the New York Times, said he was once tied to a bed for 26 hours last month. Now, he wrote, “Two times a day they tie me to a chair in my cell. My arms, legs and head are strapped down. I never know when they will come.”

The Red Cross and other groups oppose force-feeding; they say prisoners have a right to choose whether they eat. The U.S. military position is that it would be inhumane to let prisoners starve. A spokesman told the Miami Herald allowing a detainee to harm himself “is anathema to our values as Americans.”

How many prisoners are left at Gitmo?

166. Since 2002, a total of 779 people have been held there.

No one has been brought to Gitmo under President Obama. The last people to leave were two Uighur Muslims from China, who were resettled in El Salvador last spring. Adnan Latif, a Yemeni, died in an apparent suicide in September. He was the ninth detainee to die.

Does the U.S. consider the detainees still there all dangerous terrorists?

No. In fact, about half the detainees have been approved for release. Here’s the government’s categorization of people held at Gitmo, as of last November:

• 56 have been cleared for transfer to their own or a third country. Last fall, the State Department made 55 of those names public.
• 30 Yemenis have been cleared to be sent back to Yemen, but are being held because of an unstable security situation there.
• 24 people have “possible prosecution pending.”
• 46 are being held in indefinite detention under the 2001 authorization for military force: they’ve been deemed too dangerous to release, but are not facing prosecution.
• Seven are facing trial by military commissions. That includes Khalid Sheikh Mohammed and four others accused of plotting the 9/11 attacks.
• Three were convicted in military commissions and are serving out their sentences or fulfilling plea bargains. (Four others were also convicted but transferred to their home countries.)

The U.S. won’t release the names of those it considers hunger strikers, and it’s not always clear which category detainees fall into. Some of those who have spoken through their lawyers are on the cleared-for-transfer list (Moqbel, of the New York Times op-ed, is not, though he claims he is among the group of Yemenis who may be transferred.)

Carol Rosenberg of the Miami Herald says she has been told that the 9/11 defendants and the rest of the 16 “high-value” detainees, who were brought to Gitmo from the CIA’s black-site prisons, are not participating in the hunger strike. They are held in a separate, secret section of the camp. (See the Herald’s “prison-camp primer” for descriptions of where the detainees are held.)

Why haven’t the people cleared for transfer been released?

Over the past few years Congress effectively prohibited bringing detainees to the U.S. and made it difficult to send them to other countries, by requiring an assurance that the individual would never pose a threat to the U.S. in the future.

Difficult, but not impossible 2013 there are waivers in the legislation that allow the president to get around the restrictions in certain cases. Human rights groups are pushing the administration to use those waivers, but Obama has yet to do so. Four detainees have been sent abroad since the law on overseas transfers went into effect, but in each case, it was to fulfill a court-ordered release or a military commission plea agreement, which Congress allowed. (The Supreme Court has ruled the men at Gitmo have the right to challenge their detention in federal court.)

As for the Yemenis still at Gitmo, Obama announced a moratorium on transfers to Yemen after the attempted Christmas Day bombing of 2009. There are also fears about recidivism 2013 a report this year from the Director of National Intelligence estimates that 16 percent of released detainees have “reengaged” in militant activities. (Most of them were released under President George W. Bush.)

Other countries have also called for the release of their citizens. The president of Yemen, which has worked closely with the U.S. on drones and counterterrorism, recently referred to Gitmo as “clear-cut tyranny.”  Britain has also reportedly lobbied for the release of one of the hunger strikers, Shaker Aamer, who has British residency. The UN commissioner for human rights has said that “indefinite incarceration” at Gitmo “is in clear breach of international law.”

Why hasn’t Obama closed Gitmo?

The White House says he “remains committed” to closing Gitmo, but those plans have stalled in the face of congressional opposition.

One of Obama’s first acts in office was an executive order to shut down the prison within a year. He didn’t rule out continued military detention or trial in military commissions, but temporarily suspended the commissions and required a review of the status of the Gitmo detainees.

In a speech a few months later, Obama said that “the existence of Guantanamo likely created more terrorists around the world than it ever detained,” and had “set back the moral authority that is America’s strongest currency in the world.”

Since then, lawmakers have passed restrictions and the administration has dropped many of its visible efforts to shut down Gitmo.

This January, the State Department shut down the office responsible for detainee resettlement. Even if transfer restrictions were loosened, it’s not clear what would happen to the prisoners who are being held indefinitely. A new periodic review process for the detainees was created in 2011, though it still hasn’t actually begun. Military commissions started up again, with some changes — though still plenty of controversy, including questions about government censorship and surveillance.

What can outside observers see at Gitmo?

Not much beyond what the military wants them to see.

The competing claims about water quality, numbers of strikers, and the Koran searches underscore the limited, often one-sided, information that gets out. Detainees communicate mostly through their lawyers. The military controls access to the prison.  It recently stopped commercial flights to the base, a decision met with anger from attorneys and quickly reversed. For a few weeks recently, reporters were shut out of the prison.

A Reuters photographer recently recounted his tightly-monitored visit, and what he was and wasn’t allowed to shoot (totally fine: signs saying “No Photos.” Not fine: detainees’ faces.) Carol Rosenberg, of the Miami Herald, also recently described the restrictions on reporting from Gitmo, which she’s been doing for 11 years. She’s never been allowed to speak to a detainee.

The Red Cross has access to prisoners and has been to Gitmo during the strike, though its findings are rarely made public. Last week, the group’s president called the legal situation of prisoners there “untenable.”

How much does Guantanamo cost?

A lot. A recent report from the Government Accountability Office said the prison costs, on average, $114 million per year, not including military personnel. A 2011 analysis put the annual cost per prisoner at $800,000 2013 as much as 30 times what it costs to keep someone in federal prison.

The Pentagon has proposed a $150 million overhaul of the facility this year.

Gitmo Defense Lawyers Say Somebody Has Been Accessing Their Emails

by Cora Currier ProPublica, April 11, 2013, 11:12 a.m.

The long-troubled military trials at Guantanamo Bay were hit by revelations earlier this year that a secret censor had the ability to cut off courtroom proceedings, and that there were listening devices disguised as smoke detectors in attorney-client meeting rooms.

Now, another potential instance of compromised confidentiality at the military commissions has emerged: Defense attorneys say somebody has accessed their email and servers.

“Defense emails have ended up being provided to the prosecution, material has disappeared off the defense server, and sometimes reappeared, in different formats, or with different names,” said Rick Kammen, a lawyer for Abd Al Rahim Al Nashiri, who is accused of plotting the 2000 attack on the U.S.S. Cole.

The lawyers say they don’t know exactly who is accessing their communications. And it’s not yet clear whether the emails were intentionally grabbed or were scooped up mistakenly due to technical or procedural errors.

Either way, the lawyers are concerned.

In response to the apparent breaches, the military’s chief defense counsel ordered defense lawyers to stop using email for privileged or confidential communications.

“This follows on the heels of the seizure of over 500,000 e-mail containing attorney-client privileged communications as well as the loss of significant amount of defense work-product contained in shared folders,” Commander Walter Ruiz, one of the military defense counsels, said in an email.

The search of thousands of emails was revealed by the prosecution, attorneys say.

“The searches on their face looked to be fairly benign,” Kammen said.  The defense emails turned up when prosecutors requested a search of prosecutors’ own emails. “The people who were doing the searches ended up providing all manner of defense material as well.” It’s not clear what department, agency, or office did the search.

It is not possible to corroborate the attorneys’ accounts because the full documents are undergoing security review, and are not yet public.

The Pentagon declined to comment, citing the ongoing trial.

In recent months, defense lawyers also realized that files were missing from their shared and personal servers. There is no evidence that the missing files are connected to the email searches.

“The main thing is that the integrity of the system as the whole is in very serious question,” said Commander Ruiz. The order to stop using servers and emails, “essentially cripples our ability to operate,” he said.

Hearings in Nashiri’s case were scheduled for next week, but in response to a motion from his lawyers, military judge James Pohl has delayed the hearings for two months. Yesterday, lawyers for the 9/11 plotters also filed a motion regarding “Information Technology Corruption and Loss of Relevant Defense Files.”

These new concerns are the latest example of irregularities of military commissions overshadowing the actual facts of the cases brought before them. Pretrial hearings have been consumed by issues such as whether defendants can wear camouflage to court (they can), when mail can be read, and what exactly lawyers can discuss with or send their clients. The prosecution has also tried to prohibit “informational contraband,” including any material on “current political or military events in any country; historical perspectives or discussions on jihadist activities.” Copies of the 9/11 Commission Report and the memoirs of an FBI agent have been taken from defendants’ cells.

In cases before the commissions, defendants’ interactions with their attorneys are subject to strict controls. Orders aimed at protecting classified information govern most proceedings and lawyers have limited access to their clients. Defense lawyers previously had to get a security officer’s approval to use even mundane information from defendants. That requirement was loosened a bit, but details of the defendants’ time in CIA custody 2013 including their own accounts of being tortured 2013 are automatically classified.

There have been seven convictions under the military commissions. Another seven detainees are currently facing charges, and 24 others may yet be prosecuted. The government has deemed 46 detainees simply too dangerous to release but doesn’t plan to try them.

The Obama administration initially sought to try Khalid Sheikh Mohammed and the four other alleged 9/11 plotters in federal court in Manhattan, but reversed its position after heated opposition from Congress and New York City officials.

Though President Obama has thus far failed to fulfill his pledge to close Guantanamo, no one has been brought to the prison under the Obama administration. In recent months, a string of terror suspects have been extradited from foreign countries to face charges in U.S. courts.