As his presidency drew to a close, Barack Obama’s top aides routinely reviewed intelligence reports gleaned from the National Security Agency’s incidental intercepts of Americans abroad, taking advantage of rules their boss relaxed starting in 2011 to help the government better fight terrorism, espionage by foreign enemies and hacking threats, Circa has learned.
The NSA is expected to turn over logs as early as this week to congressional committees detailing who consumed reports with unmasked Americans’ identities from their intercepts since the summer of 2016.
This information is likely to become a primary focus of the Russia counterintelligence probe of the House and Senate Intelligence Committees.
Circa confirmed the unmasking procedures through interviews with intelligence professionals and by reviewing previously classified documents it obtained that described the loosening of privacy requirements.
To intelligence professionals, the public revelations affirm an undeniable reality.
Over the last decade, the assumption of civil liberty and privacy protections for Americans incidentally intercepted by the NSA overseas has been eroded in the name of national security.
Today, the power to unmask an American’s name inside an NSA intercept — once considered a rare event in the intelligence and civil liberty communities — now resides with about 20 different officials inside the NSA alone. The FBI also has the ability to unmask Americans’ names to other intelligence professionals and policymakers.
And the justification for requesting such unmasking can be as simple as claiming “the identity of the United States person is necessary to understand foreign intelligence information or assess its importance,” according to a once-classified document that the Obama administration submitted in October 2011 for approval by the Foreign Intelligence Surveillance Court. It laid out specifically how and when the NSA could unmask an American’s identity.
A U.S. intelligence official directly familiar with the procedures told Circa that while the unmasking requirements have been eased and the availability of intercepts widened, the NSA still regards protecting Americans’ privacy as essential.
“When [the NSA] uses their authority to unmask them we have very stringent rules,” the official said, speaking only on condition of anonymity due to secret nature of the NSA’s work. “We have very strict oversight from all three branches of government — the executive, judicial and legislative.
Spokesmen for Obama, Brennan, Lynch and Rice did not immediately return calls Tuesday seeking comment. However, when questioned recently about House Intelligence Committee Chairman Devin Nunes’ allegations that Obama administration officials had access to unmasked American intercepts of Trump associates at the end of the Obama presidency, Rice said she knew of no reason for concern.
“I know nothing about this. I was surprised to see reports from Chairman Nunes on that account today,” Rice told PBS.
“There may be very good reasons for some political appointees to need access to a non-minimized intelligence reporting but we don’t know and given the breadth of unmasked sharing that went on, there is the strong possibility of abusive or excessive access that harmed Americans’ privacy,” said an intel source familiar with the data. Added another: “Wholesale access to unmasked incidental NSA intercepts essentially created the potential for spying on Americans overseas after the fact, which is exactly what our foreign intelligence arms are not supposed to be doing.”
The ACLU, an ally of Obama on many issues, issued a statement a few months ago warning that the president’s loosened procedures governing who could request or see unmasked American intercepts by the NSA were “grossly inadequate” and lacked “appropriate safeguards.”
Nunes, the House intelligence panel chairman who was not interviewed for this story, alleged in the last week he has received evidence that Obama administration political figures gained access to unmasked American identities through foreign intercepts involving the Trump transition team between November and January.
The FBI and House and Senate intelligence committee will also try to determine if that access led to the leaking of sensitive intelligence, such as the media reports that Trump National Security adviser Mike Flynn was intercepted last December by the FBI having contact with the Russian ambassador.
The NSA is strictly forbidden from targeting Americans for surveillance while carrying out is perfectly legal and essential mission to spy on foreign powers, encoded in FISA’s Section 702.
The NSA, however, was granted dispensation from any penalty if it wiretaps or collects information of an American accidentally, an event known as an incidental collection.
The number of senior government officials who could approve unmasking had been limited to just a few, like the NSA director himself.
One of those relaxations came in 2011 when Attorney General Eric Holder sent a memo to the FISA court laying out the rules for sharing unmasked intercepts of Americans captured incidentally by the NSA. The court approved the approach.
In 2015, those rules were adapted to determine not only how the FBI got access to unmasked intelligence from NSA or FISA intercepts but also other agencies. One of the requirements, the NSA and FBI had to keep good records of who requested and gained access to the unredacted information.
And in his final days in office, Obama created the largest ever expansion of access to non-minimized NSA intercepts, creating a path for all U.S. intelligence to gain access to unmasked reports by changes encoded in a Reagan-era Executive Order 12333.
The government officials who could request or approve an exception to unmask a U.S. citizen’s identity has grown substantially. The NSA now has 20 executives who can approve the unmasking of American information inside intercepts, and the FBI has similar numbers.
And executives in 16 agencies — not just the FBI, CIA and NSA — have the right to request unmasked information.
Even when an American’s name isn’t included in a report, the NSA’s intercept information could be so specific that it identifies them.
In one hypothetical example offered by an intelligence professional, “if NSA included a day-after-the-election intercept of foreign leaders congratulating an American on his election to the presidency, it wouldn’t be hard to figure out the intercepted person was Donald Trump in 2016 or Barack Obama back in 2008.”
Where the line will be drawn or redrawn between privacy advocates concerns and the intelligence community’s need to know will likely be shaped by the raging debate over Russia, Trump, and unmasked identities that will ensue over the next few months
Executive Order 12333 was signed by President Ronald Reagan on December 4, 1981.
On December 4, 1981, U.S. President Ronald Reagan signed Executive Order 12333, an Executive Order intended to extend powers and responsibilities of U.S. intelligence agencies and direct the leaders of U.S. federal agencies to co-operate fully with CIA requests for information.[1] This executive order was entitled United States Intelligence Activities.
It was amended by Executive Order 13355: Strengthened Management of the Intelligence Community, on August 27, 2004. On July 30, 2008, President George W. Bush issued Executive Order 13470[2] amending Executive Order 12333 to strengthen the role of the DNI.[3][4]
“Goals, Direction, Duties and Responsibilities with Respect to the National Intelligence Effort” lays out roles for various intelligence agencies, including the Departments of Defense, Energy, State, and Treasury.
“Conduct of Intelligence Activities” provides guidelines for actions of intelligence agencies.
Part 2.3 permits collection, retention and dissemination of the following types of information along with several others.
“(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation”[1]
“(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws”[1]
Part 2.11 of this executive order reiterates a proscription on US intelligence agencies sponsoring or carrying out an assassination. It reads:[5]
No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.
Previously, EO 11905 (Gerald Ford) had banned political assassinations and EO 12036 (Jimmy Carter) had further banned indirect U.S. involvement in assassinations.[6] As early as 1998, this proscription against assassination was reinterpreted, and relaxed, for targets who are classified by the United States as connected to terrorism.[7][8]
Executive Order 12333 has been regarded by the American intelligence community as a fundamental document authorizing the expansion of data collection activities.[9] The document has been employed by the National Security Agency as legal authorization for its collection of unencrypted information flowing through the data centers of internet communications giants Google and Yahoo!.[9]
In July 2014 chairman David Medine and two other members of the Privacy and Civil Liberties Oversight Board, a government oversight agency, indicated a desire to review Executive Order 12333 in the near future, according to a report by journalist Spencer Ackerman of The Guardian.[9]
In July 2014, former State Department official John Tye published an editorial in The Washington Post, citing his prior access to classified material on intelligence-gathering activities under Executive Order 12333, and arguing that the order represented a significant threat to Americans’ privacy and civil liberties.[10]
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National Security Advisor Susan Rice and President Barack Obama speaking on secure phones in a Sensitive Compartmented Information Facility after the 2016 Brussels bombings
A Sensitive Compartmented Information Facility (SCIF; pronounced “skiff”) in United States military, national security/national defense and intelligence parlance, is an enclosed area within a building that is used to process Sensitive Compartmented Information (SCI) types of classified information.
SCI is usually only briefed, discussed, and stored in an accredited SCIF.[citation needed]
Access to SCIFs is normally limited to those individuals with appropriate security clearances.[1] Non-cleared personnel in SCIF must be under the constant oversight of cleared personnel and all classified information and material removed from view in order to prevent unauthorized access to said information and material;[2] as part of this process, non-cleared personnel are also typically required to surrender all recording, photographic and other electronic media devices.[3] All of the activity and conversation inside is presumed restricted from public disclosure.
Some entire buildings are SCIFs where all but the front foyer is secure. A SCIF can also be located in an air, ground or maritime vehicle, or can be established on a temporary basis at a specific site. The physical construction, access control, and alarming of the facility has been defined by various directives, including Director of Central Intelligence Directives (DCIDs) 1/21 and 6/9, and most recently (2011) by Intelligence Community Directive (ICD) 705, signed by the Director of National Intelligence. ICD 705 is a three-page capstone document that implements Intelligence Community Standard (ICS) 705-1, ICS 705-2 and the TECHNICAL SPECIFICATIONS FOR CONSTRUCTION AND MANAGEMENT OF SENSITIVE COMPARTMENTED INFORMATION FACILITIES or “Tech Specs.” The latest version of the Tech Specs was published in September 2015 (Version 1.3).
Computers operating within such a facility must conform to rules established by ICD 503. Computers and telecommunication equipment within must conform to TEMPEST emanations specification as directed by a Certified TEMPEST Technical Authority (CTTA).
https://en.wikipedia.org/wiki/Sensitive_Compartmented_Information_Facility
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