A controversial NSA surveillance program used to monitor foreigners was also being used by the FBI as ‘backdoor’ to gain warrantless access to American communications, according to numerous former U.S. intelligence and law enforcement officials with knowledge of the program.
“The program can be misused by anyone with access to it,” said an Intelligence official, with knowledge of the program.
The whistleblowers, who recently disclosed the program’s process to Congressional oversight committees, say concern over the warrantless surveillance mounted when it was disclosed earlier this year that Obama officials had accessed and unmasked communications of members of President Trump’s 2016 campaign, allegedly without clear justification.
The process, known as ‘reverse targeting,’ occurs when intelligence and law enforcement officials use a foreign person as a legal pretense for their intended target, an American citizen, the officials stated. The program, as it exists, failed to prevent terror attacks and in many cases made incorrect connections between a foreign target and an innocent American, they stated.
The whistleblowers said the program established after the September 11, 2001, attacks has not been successful in preventing terror threats, but instead infringes on privacy rights and could easily be abused for political purposes. Those concerns were also voiced to then FBI Director James Comey in 2014, and alternative options for the program were discussed, a source with knowledge said. And now, those intelligence officials want lawmakers to conduct extensive investigations into the program.
“The program can be misused by anyone with access to it,” said a former Intelligence official, with knowledge of the program. “There needs to be an extensive investigation of all the Americans connected to President Trump and the campaign who were unmasked in connection with the 2016 election.”
FBI officials declined to comment for this story.
The former intelligence source said the extent of abuses under the surveillance program has been debated both publicly and privately throughout the Bush and Obama administrations, both which promised to revamp the covert program and stop warrantless surveillance of Americans. It didn’t happen.
The program was first disclosed in a New York Times article from 2005 , and was later outed by its codename Stellar Wind when whistleblower, now fugitive, Edward Snowden released thousands of classified government documents showing the extensive Internet and phone surveillance of American’s by the NSA, according to reports. Since 2001, various legal authorities were put in place to justify the access to communications and giving the appearance that the practice of warrantless surveillance was strictly regulated.
“The warrantless surveillance program had the appearance of being shut down following the 2005 New York Times article that exposed it,” said a former Intelligence official, with knowledge of the program. “However, a few weeks later, the FISC (Foreign Intelligence Surveillance Court) approved what is known as bulk FISA collection. This FISA authority allowed for the targeting of domestic numbers believed to be tainted.”
And the issue comes at a critical time. Members of Congress are preparing to vote on the reauthorization of Section 702, of the Foreign Intelligence Surveillance Act (FISA) which is set to expire at the end of the year. Section 702 allows the NSA to monitor foreign communications but American’s are often ‘incidentally’ swept into the surveillance. In those cases, Americans are either communicating with the foreign target, have spoken to someone who’s part of the chain of calls associated with the original target or their names have been swept up in conversations where two foreigners are speaking about them.
On Wednesday, House Judiciary Chairman Bob Goodlatte, R-VA, questioned the FBI’s use of Section 702’s warrantless surveillance. He asked Justice Department Deputy Attorney General Rod Rosenstein, why the FBI should be able to use the FISA to search for information stored “incidentally” on US citizens without a warrant. Rosenstein used a “hypothetical situation,” as an example, suggesting the program could tip off law enforcement officials to a possible terror threat.
But Goodlatte interrupted Rosenstein, saying the American public would “expect their civil liberties to be protected.”
“The debate over 702 is a charade because behind the scenes they’re collecting everything on every American that they possibly can,” said William Binney, former NSA employee and whistleblower.
NSA whistleblower William Binney, who spent close to 40 years working on Signals Intelligence operations, told this reporter, that the crux of the abuse lies with Executive Order 12333, and specifically under section 2.3 paragraph C, which allows for the collection of all Internet and phone communications. He left the NSA in 2001, after discovering the intrusiveness of the program and its alleged violations of the constitution, he said.
“This program has expanded to at least 100 tap points on the fiber optic lines inside the United States,” said Binney, who added that the tap lines give the NSA the ability to copy everything being communicated over the fiber optic lines that contain all American communications. The foreign communications enter through the transoceanic cables that surface on the coastlines of the United States and if they were only after foreigners they would only be accessing those lines at those points, added Binney.
He said the primary target of this collection is domestic collections, stressing his concern that the program is ripe with abuse. He noted that Executive Order 12333’s collection of ‘upstream’ data eliminates any debate on the protections put in place by Congress under FISA Section 702. It was those growing concerns from the Foreign Intelligence Surveillance Court, and evidence showing nearly one in 20 searches were legally problematic, that the NSA ended upstream searches of American’s data this Spring.
Binney, however, said the system has workarounds and the data is still being collected.
“There really is no need for the FISA Section 702 program because they have direct access to those databases and can target U.S. citizens directly,” he said. “The debate over 702 is a charade because behind the scenes they’re collecting everything on every American that they possibly can.”
“At the NSA there’s a contingency plan for everything, there’s even a contingency plan for a contingency plan,” said former Cyber security official, who worked on clandestine operations targeting foreign threats.
The FBI unit operating the program was known as ‘Team 10’ and these expert analysts were housed in a special division inside the NSA, known as ‘Homeland,’ based in Fort Meade, Maryland.
“The program is not inherently bad or corrupt,” said the Intelligence official, with knowledge of the program. “It needs a major tweak, a restructuring of processes and authorities. If left unchallenged and unchecked, rampant abuse will continue and increase as we have seen for some time.”
In Comey’s last testimony as FBI director before he was fired by President Trump, he told lawmakers any warrantless information accessed by the FBI, “lawfully collected, carefully overseen and checked.”
But a Foreign Intelligence Surveillance Court surveillance ruling declassified in April references hundreds of violations of the FBI’s privacy-protecting minimization rules that occurred on Comey’s watch. The FBI admitted to a FISA judge that the bureau had illegally shared raw intelligence with unauthorized third parties to accessing intercepted attorney-client privileged communications without proper oversight that it promised was in place, according to the court records.
In recent weeks the whistleblowers spoke to members of the House Intelligence Committee, which is investigating the circumstances surrounding the unmasking of Trump campaign officials during and after the 2016 election.
Those whistleblowers question why former United Nations Ambassador Samantha Power, former National Security Advisor Susan Rice and former CIA Director John Brennan, had all requested unmasking related to members of the Trump campaign and the process with which they requested and justified their unmasking of the officials.
The controversy led to proposals by the committee to tighten the restrictions on FISA Section 702. On Dec. 1, the committee passed the The FISA Amendments Reauthorization Act of 2017. Democrats voted against the bill, which requires those requesting an unmasking to justify why they need the information. The bill also mandates that official reports be sent to Congress on unmasking requests and requires specific procedures for unmasking members of presidential transition teams.
Director of National Intelligence Dan Coats has also promised to order tighter restrictions on the release of American names in intelligence reports after charges on arose on the possible misuse of the program when members of President Trump’s campaign were ‘unmasked’ and in the instance of former National Security Advisor Michael Flynn was leaked to the press, as reported by Reuters.
According to data released by the DNI the NSA unmasked Americans‘ names in 2016, more than 1,900 times and was asked to do more than 35,000 searches of intercepted communication data on U.S. persons.
The whistleblowers, however, stressed that the problem goes far beyond the problems described in FISA Section 702.
“Many ‘incidental intercepts’ of Americans were actually intentional and the FBI, along with other intelligence agencies, knew they were using the tools meant to track foreign targets to create a chain that would include the American they were originally interested in targeting,” said another retired U.S. Intelligence official, who has knowledge of the program and spoke with Congressional members.
The Obama administration faced enormous public pressure after the Snowden leaks and scrambled to fill the seats of a civilian oversight board, known as The Privacy and Civil Liberties Oversight Board, or PCLOB, to conduct oversight of the surveillance program and offer recommendations to improve it.
In an interview with PBS’s Charlie Rose in 2013,Obama reassured the American people that the administration would work diligently to roll back the extent of the NSA’s program and enlist the PCLOB, which was “made up of independent citizens, including some fierce libertarians” that would investigate the NSA program and apparent violation of American civil liberties.
In 2015, PCLOB made recommendations that the NSA surveillance targeting procedures, specifically, FISA section 702, should be periodically reviewed by the Foreign Intelligence Surveillance Court to ensure that the targets include only non-U.S. persons outside the United States. The board also made recommendations that the “FBI’s minimization procedures should be updated to more clearly reflect the actual practice for conducting U.S. person queries, including the frequency with which Section 702 data may be searched when making routine queries as part of FBI assessments and investigations.”
The board members insisted that “additional limits should be placed on the FBI’s use and dissemination of Section 702 data in connection with non-foreign intelligence criminal matters.”
But in January, days before Obama administration left office, it expanded the ability of the intelligence community to access non-minimized raw intercepted data stored by the NSA through changes encoded in Executive Order 12333. The new rules allowed the NSA to share “raw signals intelligence information,” including the names of those involved in phone conversations and emails with executives in all 16 U.S. intelligence agencies. The NSA now has 20 executives who can approve the unmasking of American information inside intercepts, and the FBI has similar numbers, as reported earlier.
“This was in direct opposition to his promises to the American people in 2013, to protect their civil liberties in the aftermath of the Snowden leaks,” said former intelligence official, who has disclosed the abuses related to the program to Congressional officials. “The expansion of the order makes it difficult to narrow in on the leaks and frankly, it allows too many people access to the raw data, which only used to be available to a select few.”
The official stressed that “President Trump needs to a look at this executive order and rescind Obama’s expansion of it.”
But another former U.S. Intelligence Official, who spent more than 30 years in the CIA and is familiar with the program, questioned whether the government would actually change its intrusive nature.
The former intelligence official said he warned the Bush administration in 2001, against the program’s lack of oversight and abuses that could occur. Nearly two decades later, he says the spy program is “the weaponization of counterintelligence tools – meant to go after terrorists and foreign threats- being used, in some instances, against the American people.”