Executive Order 12333 of 1981: End-Running the Fourth Amendment

I. E.O. 12333: End-Running the Fourth Amendment; End of ‘Constitutional Era’ in America

By Peter Van Buren

ASSOCIATED PRESS

Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.

The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.

That was Then

It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the knock on the door in either their homes or the homeland writ large.

In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.

The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free“ zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.

The Center of It All: Executive Order 12333

The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.

Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.

Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”

So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.

Tom Drake, perhaps the best-known NSA whistleblower prior to Edward Snowden, put it in simpler terms: “12333 is now being used as the legal justification for everything.”

Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.

Snowden Knew

Again, as a historical note, executive orders — basically dictates from the president — once did not trump the Constitution. However, in Post-Constitutional America, they do.

As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.

As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”

Ask Obama This Question

So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?

Of course, getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.

Follow Peter Van Buren on Twitter: www.twitter.com/wemeantwell

II. Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans

By John Napier Tye, July 18, 2014
John Napier Tye served as section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014. He is now a legal director of Avaaz, a global advocacy organization.

In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.”

But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did.

Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them.

Public debate about the bulk collection of U.S. citizens’ data by the NSA has focused largely on Section 215 of the Patriot Act, through which the government obtains court orders to compel American telecommunications companies to turn over phone data. But Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.

From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333.

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

“Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity.

“Incidental collection” might need its own power plant.

A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.

Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.

The attorney general, rather than a court, must approve “minimization procedures” for handling the data of U.S. persons that is collected under 12333, to protect their rights. I do not know the details of those procedures. But the director of national intelligence recently declassified a document (United States Signals Intelligence Directive 18) showing that U.S. agencies may retain such data for five years.

Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.

I am not the first person with knowledge of classified activities to publicly voice concerns about the collection and retention of communications by U.S. persons under 12333. The president’s own Review Group on Intelligence and Communication Technologies, in Recommendation 12 of its public report, addressed the matter. But the review group coded its references in a way that masked the true nature of the problem.

At first glance, Recommendation 12 appears to concern Section 702 of the FISA Amendments Act, which authorizes collection inside the United States against foreign targets outside the United States. Although the recommendation does not explicitly mention Executive Order 12333, it does refer to “any other authority.” A member of the review group confirmed to me that this reference was written deliberately to include Executive Order 12333.

Recommendation 12 urges that all data of U.S. persons incidentally collected under such authorities be immediately purged unless it has foreign intelligence value or is necessary to prevent serious harm. The review group further recommended that a U.S. person’s incidentally collected data never be used in criminal proceedings against that person, and that the government refrain from searching communications by U.S. persons unless it obtains a warrant or unless such searching is necessary to prevent serious harm.

The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees.

In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.

All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper.

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.

Proposals for replacing Section 215 collection are currently being debated in Congress. We need a similar debate about Executive Order 12333. The order as used today threatens our democracy. There is no good reason that U.S. citizens should receive weaker privacy and oversight protections simply because their communications are collected outside, not inside, our borders.

I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of U.S. intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material.

When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

[email protected]

III. The executive order that led to mass spying, as told by NSA alumni

Feds call it “twelve triple three”; whistleblower says it’s the heart of the problem.

CYRUS FARIVAR – 8/27/2014, 7:00 PM

The Oval Office as it looked at the end of President Reagan’s second term, as seen in the replica at the Ronald Reagan Presidential Library.
Dhrupad Bezboruah
One thing sits at the heart of what many consider a surveillance state within the US today.

The problem does not begin with political systems that discourage transparency or technologies that can intercept everyday communications without notice. Like everything else in Washington, there’s a legal basis for what many believe is extreme government overreach—in this case, it’s Executive Order 12333, issued in 1981.

“12333 is used to target foreigners abroad, and collection happens outside the US,” whistleblower John Tye, a former State Department official, told Ars recently. “My complaint is not that they’re using it to target Americans, my complaint is that the volume of incidental collection on US persons is unconstitutional.”

The document, known in government circles as “twelve triple three,” gives incredible leeway to intelligence agencies sweeping up vast quantities of Americans’ data. That data ranges from e-mail content to Facebook messages, from Skype chats to practically anything that passes over the Internet on an incidental basis. In other words, EO 12333 protects the tangential collection of Americans’ data even when Americans aren’t specifically targeted—otherwise it would be forbidden under the Foreign Intelligence Surveillance Act (FISA) of 1978.

In a May 2014 interview with NBC, former NSA contractor Edward Snowden said that he specifically asked his colleagues at the NSA whether an executive order could override existing statutes. (They said it could not.) Snowden’s lawyer, Jesselyn Radack, told Ars that her client was specifically “referring to EO 12333.”

EO 12333, SECTION 2.3 PARAGRAPH

2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention, and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;

(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;

(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;

Thirty-year NSA veteran William Binney told Ars that drastic measures such as the NSA’s Fairview program—described by other intelligence whistleblowers as the NSA’s project to “own the Internet”—are also authorized under EO 12333.
“This program was started at least back in 2001 and has expanded to between 80 and 100 tap points on the fiber optic lines in the lower 48 states,” he said by e-mail. “Most of these fiber optic tap points are not on the East or West coast. This means that the primary target of this collection is domestic… Most collection of US domestic communications and data is done under EO 12333, section 2.3 paragraph C in the Upstream program. They claim, near as I can tell, that all domestic collection is incidental. That’s, of course, the vast majority of data.”

Specifically, that subsection allows the intelligence community to “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”‘

The path to EO 12333

Executive orders vary widely. One of the most famous executive orders, the Emancipation Proclamation, freed slaves in the United States under President Abraham Lincoln. A more infamous example came under President Franklin D. Roosevelt, who issued an executive order to intern Japanese-Americans in prison camps in 1942.

President Ronald Reagan signed EO 12333 within his first year in office, 1981, largely as a response to the perceived weakening of the American intelligence apparatus by his two immediate predecessors, Presidents Gerald Ford and Jimmy Carter. Later, EO 12333 was amended three times by President George W. Bush between 2003 and 2008.

“Reagan did this at every opportunity: with military exercises, challenging the Soviets in their own airspace and waters, across the board. The gloves were coming off,” Melvin Goodman told Ars. Goodman was the CIA’s division chief and senior analyst at the Office of Soviet Affairs from 1976 to 1986. He’s now the director of the National Security Project at the Center for International Policy in Washington, DC.

Bush’s reasons for strengthening EO 12333 were similar. After the United States faced another existential threat in the immediate aftermath of the September 11 attacks, Bush—and later President Barack Obama—used EO 12333 to expand American surveillance power. But if EO 12333 is essentially a reaction, how was mass surveillance handled beforehand?

FURTHER READING

How a 30-year-old lawyer exposed NSA mass surveillance of Americans—in 1975

In the 1960s, the American intelligence community turned its spy gear and covert capabilities against its own people by infiltrating and disrupting various civil rights groups (COINTELPRO), by capturing mail and telegrams (Project Shamrock), monitoring the activities of Americans abroad (Operation Chaos), and by intercepting electronic communications of many high-profile Americans (Project Minaret). Such targets included Dr. Martin Luther King Jr., Muhammad Ali, and even antiwar activist and actress Jane Fonda.

By 1975, the US Senate’s Church Committee started exposing those programs, and many notable intelligence reforms soon took shape—including FISA and the corresponding Foreign Intelligence Surveillance Court (FISC). Following the intelligence abuses during the Nixon era, new president Gerald Ford set about to change the way the NSA and other intelligence agencies did business.

In 1976, President Ford issued Executive Order 11905, which restricted much of this activity and put in rules like these:

(b) Restrictions on Collection. Foreign intelligence agencies shall not engage in any of the following activities:

(1) Physical surveillance directed against a United States person, unless it is a lawful surveillance conducted pursuant to procedures approved by the head of the foreign intelligence agency and directed against any of the following:

(i) A present or former employee of such agency, its present or former contractors or their present or former employees, for the purpose of protecting foreign, intelligence or counterintelligence sources or methods or national security information from unauthorized disclosure; or

(ii) a United States person, who is in contact with either such a present or former contractor or employee or with a non-United States person who is the subject of a foreign intelligence or counterintelligence inquiry, but only to the extent necessary to identify such United States person; or

(iii) a United States person outside the United States who is reasonably believed to be acting on behalf of a foreign power or engaging in international terrorist or narcotics activities or activities threatening the national security.

(2) Electronic surveillance to intercept a communication which is made from, or is intended by the sender to be received in, the United States, or directed against United States persons abroad, except lawful electronic surveillance under procedures approved by the Attorney General; provided, that the Central Intelligence Agency shall not perform electronic surveillance within the United States, except for the purpose of testing equipment under procedures approved by the Attorney General consistent with law.

Notably, Ford (and later Carter under Executive Order 12036) made it far more difficult for the US government to monitor its own people. By contrast, today EO 12333 specifically allows for broad “incidental collection” that may include US citizens. More specifically, EO 12333 allows for “information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics, or international terrorism investigation.” The push toward this reality started in the early ’80s.

“It is not so much that new powers were given to the NSA as it was a matter of showing that the NSA would not be addressed as explicitly in 12333, thereby signaling that the NSA would have more elbow room to use its own discretion in moving forward,” Loch Johnson, a professor of international affairs at the University of Georgia, told Ars. “This signaling was achieved by removing Carter’s more detailed language about that agency. This removal of language indicates a lifting of close attention to the specifics of NSA activities—a subtle grant of permissiveness, not so much in explicit language as in the absence of as many explicit prohibitions.”

“The Reagan Administration supports an aggressive and effective intelligence effort.”

CIA

Within months of Reagan’s January 1981 inauguration, his national security team set out to expand the intelligence community’s capabilities. They were well aware of the pushback that may follow.
In fact, a March 1981 letter from William Casey, the director of Central Intelligence and the head of the CIA to one of Reagan’s national security advisors, suggests that the Reagan administration was also well aware of the abuses conducted under its predecessors. (Ars obtained this document from Kenneth Mayer, who obtained it from the Ronald Reagan Presidential Library.) Despite this, Reagan advisors ultimately seemed more concerned with the perception of wrongdoing rather than actual wrongdoing.

“The absence of clear-cut, Presidentially directed restrictions will, in my judgment, create enormous uncertainty among the operators; it will reopen the wounds of the 1970s in which many intelligence officers thought of themselves as potential Felts and Millers,” Casey wrote.

(Mark Felt was the number two at the FBI under Nixon, and more than 20 years later he admitted that he was the famous “Deep Throat” leaker. Miller refers to a top Justice Department lawyer, Herbert Miller, a longtime Nixon ally.)

Casey continued:

Furthermore, the inevitable media campaign which would ensure under an Order devoid of any guidelines or restrictions, with likely charges that the Intelligence Community or the Administration intends to expand collection concerning the domestic activities of United States persons, will necessarily have an impact on the attitudes of our operators.

Of greater significance, however, is the impact that accusations of CIA intrusive domestic activity, no matter how irrational, will have on the effectiveness of our operators. It seems clear to me that an environment in which the Intelligence Community is under drumfire political attack is not conducive to gaining the cooperation of Americans at home and abroad.

He concluded, “I do heartily agree with you, however, that the most significant goal to be accomplished by the promulgation of a new Executive Order is to send a clear signal to the Intelligence Community and to the National that the Reagan Administration supports an aggressive and effective intelligence effort.”

In another memo from Casey to Edwin Meese, then a presidential advisor (who later became attorney general during Reagan’s second term), Casey refers to the administration’s desire to rebuild the intelligence community.

“What is not widely understood is that many of the most onerous impediments came from the sheer size and complexity of implementing regulations imposed by the Justice Department during the Ford and Carter years,” Casey wrote. “These caused operatives in the field to throw up their hands and quit trying. The Executive Order is needed as a road map to chart simply what they can and can’t do.”

IV. Disclosure: Reagan NSA Executive Order Worse Than Patriot Act

New American (Sunday, 20 July 2014)

Written by Joe Wolverton, II, J.D.

For those Americans angry with President Barack Obama for authorizing the National Security Agency’s (NSA) dragnet collection of citizens’ data, a recent disclosure should cause them to be even more upset with a former Oval Office occupant — Ronald Reagan.

In an op-ed published July 18 in the Washington Post, former State Department section chief John Napier Tye made the following disclosure regarding the source of NSA’s surveillance practices:

As Tye explains, Executive Order 12333 was issued in 1981 by President Ronald Reagan “to authorize foreign intelligence investigations.” Unlike Section 215, however, the language of this edict contains no provision protecting the Fourth Amendment guarantees of Americans when the data is gathered outside the United States. Later in the piece, Tye identifies additional distinctions between the two surveillance authorizations:

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

All that information — the private, formerly protected information of American citizens — that is “incidentally” collected by the NSA is likely to be of such enormous volume as to render even the newly built Utah Data Center unequal to the task.

Regarding the importance one should place on a single word in an executive order that runs 16 pages long, remember that the West Wing of the White House (and the greater intelligence bureaucracy) is full of attorneys who know the importance of specificity of language. They know that vagueness in language is contrary to good law. In fact, every day in court rooms around the country, laws are struck down for being too vague.

The point is: If these men and women, so many of whom are trained in the law, meant explicitly to forbid the NSA from monitoring and collecting the constitutionally protected data of American citizens, then they could have done so. They chose not to. They chose to leave that option open, and in 1981 Ronald Reagan chose to exercise that option.

To be precise, in his Washington Post op-ed, Tye’s is not talking about the collection of metadata. Executive Order 12333, he explains, “authorizes collection of the content of communications, not just metadata, even for U.S. persons.”

That is patently and unapologetically unconstitutional, and it was made “law” by the man considered by many Republicans and Tea Partiers to be exemplar of all things constitutional and conservative.

Despite the attention given to Tye’s piece, it is not the first time Americans have been made aware of the scope of Executive 12333-authorized surveillance.

In October 2013, the Washington Post published a slide included among a cache of documents released by NSA subcontractor-turned-whistleblower Edward Snowden that laid out the NSA’s real-time tapping of the data centers owned and operated by Internet behemoths Google and Yahoo.

In that disclosure, the Washington Post noted Executive Order 12333’s immense grant of surveillance power to the NSA. The paper quoted former NSA analyst John Schindler as saying, “Look, NSA has platoons of lawyers, and their entire job is figuring out how to stay within the law and maximize collection by exploiting every loophole. It’s fair to say the rules are less restrictive under Executive Order 12333 than they are under FISA [the Foreign Intelligence Surveillance Act].”

Tye’s assessment of the relative impact of Executive Order 12333 on the fundamental civil liberties protected by the Constitution is clear.

“I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing,” he writes.

Perhaps equally undermining of the rule of law is the legalistic doublespeak demonstrated by former NSA chief General Keith Alexander. Regarding the protocols governing the NSA’s collection of e-mail metadata and phone metadata, Tye writes:

Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans should dig deeper.

In the final paragraph of his piece, Tye explains that he is coming forward because he thinks “Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?”

This question has been asked for years, most often by Senator Ron Wyden (D-Ore.). Wyden’s every effort to measure the scope of the unwarranted, unconstitutional surveillance of Americans by agents of their own government has been thwarted.

Although Tye is to be lauded for asking this constitutionally critical question, it is unlikely he will get any more meaningful answer than the hedges and outright lies told to Senator Wyden.

Photo of President Reagan: AP Images

Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels nationwide speaking on nullification, the Second Amendment, the surveillance state, and other constitutional issues. Follow him on Twitter @TNAJoeWolverton and he can be reached at [email protected].

V. New Surveillance Whistleblower: The NSA Violates the Constitution

A former Obama administration official calls attention to unaccountable mass surveillance conducted under a 1981 executive order.

CONOR FRIEDERSDORF
JUL 21, 2014

John Napier Tye is speaking out to warn Americans about illegal spying. The former State Department official, who served in the Obama administration from 2011 to 2014, declared Friday that ongoing NSA surveillance abuses are taking place under the auspices of Executive Order 12333, which came into being in 1981, before the era of digital communications, but is being used to collect them promiscuously. Nye alleges that the Obama administration has been violating the Constitution with scant oversight from Congress or the judiciary.

“The order as used today threatens our democracy,” he wrote in The Washington Post. “I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?”

If you’ve paid casual attention to the Edward Snowden leaks and statements by national-security officials, you might be under the impression that the Obama administration is already on record denying that this sort of spying goes on. In fact, denials about NSA spying are almost always carefully worded to address activities under particular legal authorities, like Section 215 of the Patriot Act or Section 702 of the Foreign Intelligence Surveillance Act. An official will talk about what is or isn’t done “under this program,” eliding the fact that the NSA spies on Americans under numerous different programs, despite regularly claiming to be an exclusively foreign spy agency.

Executive Order 12333 is old news to national-security insiders and the journalists who cover them, but is largely unknown to the American public, in part because officials have a perverse institutional incentive to obscure its role. But some insiders are troubled by such affronts to representative democracy. A tiny subset screw up the courage to inform their fellow citizens.

Tye is but the latest surveillance whistleblower, though he took pains to distinguish himself from Snowden and his approach to dissent. “Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures,” Tye explained. “I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.”

These steps—which many say Snowden should’ve taken—produced no changes to the objectionable NSA spying and wouldn’t be garnering attention at all if not for Snowden’s leaks. It is nevertheless telling that another civil servant with deep establishment loyalties and every incentive to keep quiet felt compelled to speak out. As Tye put it:

This act of conscience illuminates yet another path a surveillance whistleblower can take. If more current and former federal officials believe the NSA is in flagrant violation of the Fourth Amendment, they should consider declaring themselves too. “Based in part on classified facts that I am prohibited by law from publishing,” Tye wrote, “I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.” I wonder what he saw but isn’t revealing.

CONOR FRIEDERSDORF is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

VI. Foreign Intelligence Surveillance (FISA Section 702, Executive Order 12333, and Section 215 of the Patriot Act): A Resource Page

Brennan Center for Justice

This collection of resources focuses on three legal authorities that provide insufficient protection for the privacy rights of Americans and law-abiding citizens of other countries.

September 28, 2017

The term “foreign intelligence” conjures images of spies collecting information about our adversaries in other countries. But Americans can get caught up in foreign intelligence investigations, too – whether they are targets themselves, communicating with targets, or simply sending e-mails that get stored or routed overseas.

Since the 1970s, there have been laws in place to safeguard the rights of Americans in foreign intelligence investigations. But some of these laws have been significantly weakened since 9/11, while others were too weak to begin with. The inadequacy of civil liberties protections in the law creates enormous potential for abuse without any corresponding security benefit.

This collection of resources focuses on three legal authorities that provide insufficient protection for the privacy rights of Americans and law-abiding citizens of other countries.

Section 702 of the Foreign Intelligence Surveillance Act (FISA): This law was passed in 2008 to legalize President George W. Bush’s warrantless wiretapping program. It removed the requirement, in place since 1978, that the government obtain a warrant from the FISA Court when seeking to wiretap communications between a foreign target and an American from inside the U.S. It also greatly broadened the scope of permissible foreign targets to include private citizens not suspected of any wrongdoing. The FISA Court must approve the general procedures for Section 702 surveillance but does not approve individual targets.

Although the target must be a foreigner overseas, Section 702 surveillance is believed to result in the “incidental” collection of millions of Americans’ communications. Agencies make broad use of these communications, notwithstanding the fact that Section 702 requires them to “minimize” the retention and sharing of Americans’ information. For instance, the FBI may comb through Section 702 data for information to use against Americans in ordinary criminal cases.

Executive Order 12333: This order, issued by President Reagan in 1981, governs electronic surveillance that the NSA conducts overseas. Unlike NSA surveillance conducted domestically (which is regulated under Section 702), overseas surveillance is not subject to any judicial oversight, and congressional oversight is limited.
While Executive Order 12333 prohibits the targeting of individual Americans, it allows “bulk collection,” resulting in the acquisition of massive amounts of Americans’ communications and other data. Under one program, for instance, the NSA collects and stores for 30 days all of the phone calls coming into and out of certain countries, including the Bahamas.

Section 215 of the Patriot Act: Passed in the immediate aftermath of 9/11, Section 215 allowed the NSA to acquire “any tangible thing” from third parties (such as telephone companies) if it could persuade the FISA Court that the item was “relevant” to a foreign intelligence investigation. In 2013, Edward Snowden revealed that the NSA was using this authority to collect Americans’ telephone records in bulk. The FISA Court approved the collection, interpreting Section 215 to permit the collection of vast quantities of irrelevant records so long as there were relevant records buried within them.

In 2015, Congress enacted the USA Freedom Act to end the NSA’s bulk collection program. In its place, Congress created a new program under which the NSA can obtain the telephone records of suspected terrorists and anyone in contact with them.

Section 702
Reports:

What Went Wrong with the FISA Court (Elizabeth Goitein & Faiza Patel, 2015)

Analysis:

Vote “NO” on Cloture – S. 139 (FISA Amendments Reauthorization Act) (January 2018)

Comparison of Key Provisions of FISA Reauthorization Amendments Act (S. 139) and Amash/USA RIGHTS Act Amendment (January 2018)

Reducing “Incidental” Collection Under FISA Section 702: A Critical Protection for Americans (October 2017)

Reforming Section 702: We Can Protect Americans’ Privacy and Protect Against Foreign Threats (August 2017)

Letter to Director of National Intelligence Dan Coats (June 13, 2017)

Letter to Senate Regarding FISA Section 702 Reauthorization (September 7, 2017)

How FISA Surveillance Affects Americans: In Search of Answers (Elizabeth Goitein, January 13, 2016)

Letter to the Director of National Intelligence (January 13, 2016)

Letter from Office of the Director of National Intelligence (December 23, 2015)

Brennan Center Urges End of Surveillance Under Section 702 (April 11, 2014)

Opinion:

A Way Forward on Section 702 Queries (Elizabeth Goitein, Robert Litt; Just Security; February 20, 2018)

Step Up On FISA Reform, Democrats (Elizabeth Goitein; New York Daily News; January 16, 2018)

Pelosi – Lead Fight to Block Government Spying on Americans (Elizabeth Goitein; San Francisco Chronicle; January 10, 2018)

Warrantless Backdoor Searches are Not “Business as Usual” (Elizabeth Goitein and Michael German’ Just Security; December 1, 2017)

The USA Liberty Act — aka Don’t Let the Constitutional be the Enemy of the Unconstitutional (Elizabeth Goitein; Just Security; November 9, 2017).

Congress Can’t Compromise on Privacy (Elizabeth Goitein; U.S. News & World Report; November 6, 2017)

A Chance to Control Domestic Spying (Elizabeth Goitein; New Republic; October 26, 2017)

Closing Section 702’s Front-Door Search Loophole: A Critical Protection for Americans (Elizabeth Goitein; Just Security; October 24, 2017)

‘Beyond Snowden’ Falls Short on Upcoming Section 702 Re-authorization Debate (Elizabeth Goitein; Lawfare; September 7, 2017)

How to Spy on a President (Elizabeth Goitein; Boston Review; March 9, 2017)

The Same Republicans Who Pushed for Invasive Surveillance Are Complaining About It Now (Elizabeth Goitein; Slate; February 16, 2017)

Holding Sessions Accountable on Civil Liberties (Rachel Levinson-Waldman; January 9, 2017)

The Ninth Circuit’s Constitutional Detour in Mohamud (Elizabeth Goitein; Just Security; December 8, 2016)

Trump Will Have Wider Spying Powers than Anything J. Edgar Hoover Ever Imagined (Elizabeth Goitein; Los Angeles Times; December 7, 2016)

The 702 Reform Debate Is Just Heating Up (Faiza Patel; Just Security; May 16, 2016)

The FBI’s Warrantless Surveillance Back Door Just Opened a Little Wider (Elizabeth Goitein; Just Security; April 21, 2016)

How FISA Surveillance Affects Americans: In Search of Answers (Elizabeth Goitein; January 13, 2016)

Bulk Collection Under Section 215 Has Ended… What’s Next? (Faiza Patel; Just Security; November 30, 2015)

Safe Harbor and Reforming Section 702 (Faiza Patel; Just Security; October 22, 2015)

The NSA’s Backdoor Search Loophole (Elizabeth Goitein; Boston Review; November 14, 2013)

Video & Radio Interviews:

Liza Goitein on BradCast: Dems Lend Trump a Helping Hand on Warrantless Surveillance of Americans (January 17, 2018)

Congress Renews Warrantless Surveillance – And Makes It Even Worse (Wired, January 11, 2018)

Just Security Special Edition Podcast: Liza Goitein on Section 702’s Reauthorization (January 11, 2018)

Liza Goitein on ReasonTV: End Warrantless Deep State Spying: Don’t Renew 702 (September 11, 2017)

Steptoe Cyberlaw Podcast: Interview with Rebecca Richards and Elizabeth Goitein (September 11, 2017)

WJLA: ‘Full Measure’: Surveillance State (July 2, 2017)

Liza Goitein on C-SPAN: FISA Reauthorization (June 27, 2017)

Elizabeth Goitein on CSPAN2: Future of FISA (June 5, 2017)

Liza Goitein on Tech Policy Podcast: NSA Checks Itself? (May 4, 2017)

Liza Goitein on All Things Considered: What is Section 702? (April 24, 2017)

Liza Goitein on All Things Considered: Unmasking 101 (April 24, 2017)

Liza Goitein on WNYC: Section 702 (March 27, 2017)

Elizabeth Goitein on Fox Business: Privacy and Security (March 23, 2017)

Interview: Michael German with Edward Snowden at Computers Freedom Privacy 2015 (October 12, 2015)

Podcast: What Went Wrong With the FISA Court? (April 2, 2015)

Interview: Michael German with Frederick A.O. Schwarz, Jr. (August 19, 2014)

Statements, Press Releases, & Testimony:

U.S. Senate Passes Bill Legalizing Warrantless Searches of Americans’ Emails, Phone Calls (January 18, 2018)

U.S. House Votes to Authorize Warrantless Domestic Spying on Americans (January 11, 2018)

Coalition Letter on Section 702 Legislation (December 20, 2017)

Senators Leahy and Lee Introduce Bill to Reform Section 702 of Foreign Intelligence Surveillance Act (November 17, 2017)

Experts Available: House Judiciary Committee Votes to Permit Warrantless Surveillance of Americans (November 8, 2017)

In Advance of Senate Intelligence Committee Markup, Sens. Wyden and Paul Introduce Bill to Reform Section 702 of FISA (October 24, 2017)

Testimony on “The FISA Amendments Act: Reauthorizing America’s Vital National Security Authority and Protecting Privacy and Civil Liberties” before the Senate Committee on the Judiciary (Elizabeth Goitein, June 27, 2017)

Testimony on Section 702 Reform before the House Committee on the Judiciary (Elizabeth Goitein, March 1, 2017)

Testimony on “Oversight and Reauthorization of the FISA Amendments Act” Before the Senate Committee on the Judiciary (Elizabeth Goitein, May 10, 2016)

U.S. House Judiciary Committee Members Call on Director of National Intelligence to Disclose Surveillance Data (April 22, 2016)

Brennan Center, Civil Liberties Groups Press Director of National Intelligence for Answers on Section 702 Surveillance (January 13, 2016)

How Many Americans are Swept Up in NSA’s Foreign Intelligence Surveillance? (October 29, 2015)

Executive Order 12333:
Reports:

Overseas Surveillance in an Interconnected World (Amos Toh, Faiza Patel, & Elizabeth Goitein, 2016)

Analysis:

Brennan Center Submits Comments on PCLOB’s 12333 Plan (June 17, 2015)

Letter to the Director of National Intelligence and the Director of the National Security Agency (April 7, 2016)

Opinion:

Obama’s Surveillance Reform Promises, One Year Later (Elizabeth Goitein; The Boston Review; April 2, 2015)

Video:

The Brennan Center for Justice & Just Security present: Overseas Surveillance in an Interconnected World: Understanding Executive Order 12333 and its Reach (March 17, 2016)

Statements & Press Releases:

Groups Ask the NSA to Halt Plans to Weaken Privacy Protections for Americans (April 7, 2016)

New Report: NSA’s Overseas Surveillance Activities Pose Major Privacy Risks to Americans, Have Little Oversight (March 16, 2016)

Section 215 and Bulk Collection:
Analysis:

Are They Allowed to Do That? A Breakdown of Selected Government Surveillance Programs (July 15, 2013)

Opinion:

Bulk Collection Under Section 215 Has Ended…What’s Next? (Faiza Patel; Just Security; November 30, 2015)

The Legal Legacy of the NSA’s Section 215 Bulk Collection Program (Michael Price; Just Security; November 16, 2015)

What Americans Actually Do When the Government Is Watching (Brynne O’Neal; Huffington Post; July 20, 2015)

When Will Surveillance Reform Stop Being Just ‘Cool’? (Faiza Patel; Al Jazeera America; June 25, 2015)

Who Really Wins from NSA Reform? (Elizabeth Goitein; MSNBC; June 5, 2015)

Our Privacy and Liberty Still At Risk, Even If Leahy NSA Bill Passes (Elizabeth Goitein; The American Prospect; August 7, 2014)

Post-9/11 Overreach of Secret Federal Court Must End (Faiza Patel; Al Jazeera America; July 18, 2014)

On Anniversary of Snowden’s NSA Disclosure, A Shocking Realization (Elizabeth Goitein; Christian Science Monitor; June 5, 2014)

A Failure to Protect Our Rights (Faiza Patel; Al Jazeera America; March 17, 2014)

Third-Party Metadata Idea Is Fourth-Rate (Elizabeth Goitein; The Wall Street Journal; March 10, 2014)

The Real State of the Union: Surveillance and Privacy (Elizabeth Goitein; Al Jazeera America; January 28, 2014)

Judge’s Ruling Could Jeopardize NSA Surveillance (Andrew Cohen; The Atlantic; December 17, 2013)

The NSA Owes Us Answers (Rachel Levinson-Waldman, MSNBC, October 27, 2013)

What They’re Not Telling Us About Telephone Records Collections (Rachel Levinson-Waldman, National Law Journal, August 26, 2013)

NSA Data Collection: A Legal Dance (Rachel Levinson-Waldman, Balkinization, June 7, 2013)

The Spying on Americans Never Ended (Elizabeth Goitein, The Wall Street Journal, June 6, 2013)

Video:

Arise TV: Mike German Discusses Surveillance Reforms (February 10, 2014)

NBC: Elizabeth Goitein on Surveillance Reforms (January 17, 2014)

BronxNet: Michael Price on NSA Data Collection (January 14, 2014)

MSNBC: Elizabeth Goitein on the NSA (December 21, 2013)

Bloomberg TV: Elizabeth Goitein on New NSA Guidelines (December 18, 2013)

EVENT: Public Voices Lecture: Surveillance in the U.S. (December 5, 2013)

CCTV: Goitein on NSA Spying on Foreign Leaders (November 3, 2013)

Globo TV: Faiza Patel on NSA Spying (October 31, 2013)

HuffPost: Goitein on NSA Spying on Foreign Leaders (October 30, 2013)

Al Jazeera: Rachel Levinson-Waldman on NSA Data (October 20, 2013)

HuffPost Live: Faiza Patel on Internet Security (September 6, 2013)

MSNBC: Elizabeth Goitein on Obama and Surveillance (August 9, 2013)

Current TV: Faiza Patel on ACLU’s Case Against NSA (June 12, 2013)

Statements & Press Releases:

Congress Passes NSA Reform Bill (June 2, 2015)

NSA Reform Bill Aims to End “Bulk Collection” of Americans’ Records, But Falls Short on Other Needed Reforms (April 28, 2015)