May 22, 2017 08:09 PM EDT
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WATCH | Tuesday, former director of the CIA, John Brennan testified in front of the House Intelligence Committee. Here’s what you need to know.
UPDATE | Former CIA director John Brennan confirmed he unmasked the identities of Americans in his testimony to the House Intelligence Committee. Upon questioning from Rep. Trey Gowdy, (R- SC) Brennan acknowledged he requested for U.S. citizen’s name to be unmasked and said that he did not unmask anyone on his last day at work, January 20.
When asked if ambassadors requested names to be unmasked Brennan said that it may have “rang a vague bell,” but that he “could not answer with any confidence.”
Brennan said the CIA respected American citizens right to privacy.
“[There is] a right of all Americans to privacy, and that sometimes information is collected about U.S. persons who may or may not be involved in any matter of criminal activity. And therefore, respecting that privacy of U.S. citizens, the intelligence community goes to great lengths to cover the identity of U.S. persons if they may be uncovered, but happen to be included in U.S. intelligence collection,” Brennan said.
There is growing evidence the agency he oversaw has become one of the largest consumers of unmasked intelligence about Americans even though its charter prohibits it from spying on U.S. citizens.
The CIA routinely searches data collected overseas on Americans by the National Security Agency, and frequently requests the names of intercepted U.S. persons to be unmasked, once-secret government documents reviewed by Circa show.
In fact, the spy agency has become such a heavy consumer of unmasked American intelligence that it has its own separate rules for making such requests, and Brennan himself was required last September to submit an affidavit to a court declaring he would keep his agency from abusing such expanded access to Americans’ private information.
Despite the declaration, there also is evidence that the CIA has broken its rules from time to time, a potential slight to Americans’ privacy protections, the documents show.
“Yes, the CIA has become one of the largest consumers of unmasked information over the last several years and one of the bigger query consumers to see what is available,” said a senior U.S. official with direct knowledge, speaking only on condition of anonymity. “As our threats have changed, the rules have been eased so that the Agency can do more to connect the dots for the entire intelligence community in what is a careful balancing act between security preservation and privacy protection.”
Here’s why all this matters.
For most of modern intelligence history, NSA intercepts and data gathered incidentally about Americans without a warrant have been mostly locked away from U.S. spy agencies, the names of impacted U.S. persons redacted from raw intelligence reports.
The procedure known as “minimization” designed to ensure the Constitution’s 4th Amendment privacy protections against unlawful search and seizure were protected.
But Circa reported earlier this spring that former President Barack Obama, Brennan’s boss, substantially loosened those privacy rules in 2011 allowing agencies like the CIA and FBI to more easily access unredacted intelligence on Americans. That led to a massive increase in both searches inside the NSAdatabase and the actual unmasking of Americans’ names in intelligence reports, and increased fears that such requests could be abused for political espionage.
Making a request can be as easy as saying a name is needed to understand a report.
In 2016, the NSA unmasked Americans‘ names in intelligence reports more than 1,900 times and was asked to do more than 35,000 searches of intercepted data for information on U.S. persons or their actual intercepted conversations, according to data released by the Office of the Director of National Intelligence.
The searches for Americans’ names in the NSA database last year amounted to a three-fold increase over 2013. Officials note that their procedures for making such requests have undergone repeated court approvals.
Officials said the CIA was one of the biggest consumers in both categories, though they declined to provide specific numbers. They also cautioned the FBI is a large consumer too and doesn’t report its statistics to the ODNI, like the CIA, for public release.
Michael Hayden, who served as director of both the NSA and the CIA under former President George W. Bush, told Circa he isn’t surprised the CIA has become a big requestor to unmask American identities, in part because the NSA doesn’t give up Americans’ names easily.
“NSA is notoriously conservative about including U.S. person identities, and they generally wait until the identity is asked for,” Hayden said. “So it’s not surprising to me that the national all source intel agency, that is the CIA, would in the normal course of their work task for the unmasking of identities. In fact, I think this is remarkably normal.”
That’s little solace to watchdogs like the American Civil Liberties Union, who have been raising alarm that American privacy is being hurt because the current unmasking rules are too easy to bypass.
“I think it is alarming. There seems to be a universal trends toward more surveillance and more surveillance that impacts Americans’ privacy without obtaining a warrant,” said Neema Singh Guliani, the ACLU’s legislative counsel in Washington D.C.
The ACLU has been sounding its concerns for years but it was only recently that Republicans who control Congress took an interest after it was revealed that recently departed National Security Adviser Susan Rice and other Obama White House officials requested or consumed unmasked intelligence reports
Some of those reports involved Donald Trump’s campaign and transition officials. Intercepts about members of Congress have been unmasked more frequently in recent years as well, officials confirmed.
Now Republicans like House Intelligence Committee Chairman Devin Nunes and Sens. Lindsey Graham and Rand Paul want to know if such requests involved political espionage rather than nationals security reasons. Intelligence like Rice insist any requests they made were lawful and necessary to do their job.
Officials confirm political appointees like former DNI James Clapper, Rice and Brennan had the ability to request such unmasking under the 2011 Obama rules. Under questioning on Capitol Hill earlier this month, Clapper acknowledged making one such unmasking request about Congress and/or a Trump figure.
Brennan is likely to be questioned Tuesday before the House Intelligence Committee if he asked for unmasked American identities, caused any of his aides to do so or let his agency use its collaboration with the FBI to spy on Americans.
And he is likely to also face questions about why the CIA needs to access to intercepts of Americans in the first place when the agency isn’t supposed to be targeting Americans for spying.
CIA officials, who spoke only on condition of anonymity, said the agency follows its unmasking rules strictly and that most requests involve specific national security needs, like identifying an American who might be the target of a terror plot or a U.S. company that might be aiding, even unwittingly, an international nuclear proliferation ring.
“National security threats know no boundaries and sometimes to do our job we have to access information that crosses into the United States, and we have rules that ensure we do so lawfully,” one official said, speaking only on condition of anonymity because he wasn’t authorized to speak to the media.
When it was formed in 1947, the CIA’s charter specifically prohibited it from becoming an “internal security” agency used to spy on Americans.
Brennan submitted an affidavit to the powerful Foreign Intelligence Surveillance Court last September saying as much, declaring his agency enforced the minimization rules it developed and submitted to the court to ensure Americans’ privacy weren’t abused by the CIA.
“CIA will follow these minimization procedures with respected to any unminimized communications it receives from NSA and FBI,” Brennan declared under penalty of perjury.
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Watch | Sara Carter’s interview last December with outgoing CIA Director John Brennan.
But with rules comes potential violations. A once top-secret 2013 report acknowledged the CIA did not always comply with its own unmasking rules.
“During this reporting period, there were [number deleted] incidents involving noncompliance with the CIA minimization procedures,” the report said, redacting the number of incidents and their specific details.
U.S. officials said such violations are small, less than 1 percent of all transactions the CIA requests. They declined to be more specific.
The Privacy and Civil Liberties Oversight Board, which was appointed by the White House to monitor intelligence agencies for possible abuses, also questioned in 2014 whether the original unmasking rules written by Brennan were adequate, It specifically warned there needed to be a requirement that the national security reasons be stated for requesting an unmasked identity.
“One of the Board’s recommendation was to institute additional measures to ensure CIA personnel access or view communications acquired under Section 702 that involve or concern U.S. persons only when there is a valid foreign intelligence reason to do so,” the PCLOB wrote in a report that was recently declassified.
Documents recently released by the FISC intelligence court indicate those changes were in fact made and that a court-appointed independent examiner concluded the CIA’s protections were now adequate.
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