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Thursday, April 06, 2006

NSA recommendations: Bush opens door to major problem, falls in trap

NARUS STA 6400 [ Click: Details on NARUS STA 6400; other Details Statement ]

Bush opens door on NSA: POTUS assertions on NSA-recommendations not credible, warrant House Judiciary follow-up

Bush asserted the NSA recommended various surveillance options. Bush has a problem when it comes to DoD recommendations. The real story doesn't match what he says.

This outlines a line of questioning for the House Judiciary, and who has the answers.

Conyers, Reed: [ Language, HR4976: Click ( } ]

* * *

We judge the following: There are major problems with the President's statements over the "NSA recommendations" inter alia :

  • A. The President's statements over what the NSA did or did not recommend are not credible;

  • B. The timing and content of the recommendations are at odds with actual intercepts and concerns raised before Sept 2001; and

  • C. There are inconsistencies between [a] the White House version of timelines and recommendations; and [b] the actual documented communications between the phone company general counsel communications and the White House, NSA and DoJ General Counsels and Inspector Generals.

    * * *

    Bush today in North Carolina, said the NSA recommended to him some things:
    "And there -- out of this national -- NSA came the recommendation that it would make sense for us to listen to a call outside the country, inside the country . . ."Ref

    Problems with that assertion:

    1. NSA was already tracking American citizens before Sept 2001, there was no time to change the software after 9-11. [Ref ] Notice the phone companies are waffling -- they say they are only doing things that are lawful [ Ref ]; but the President's idea of "lawful" includes many illegal exceptions. [ Click ]

    2. If they know the targets are AlQueda, why are they tracking them, and not charging them with crimes? The NSA and JTTF knew that they were using couriers. [ Click ]

    3. Bush's comments on "DoD recommendations" don't hold water. Bush says he listens to commanders from Iraq. Truth is, he ignored their manning requests:
    When it comes to DoD recommendations, this is a lie: Bush: "I'm not going to make decisions based upon polls and focus groups. I'm going to make my decisions based upon the recommendations of our generals on the ground. They're the ones who decide how to achieve the victory I just described. They're the ones who give me the information."Ref

    US ground commanders in Iraq have independently confirmed their requests for additional resources were ignored, contrary to the President's assertions that he took their recommendations seriously.

    Point: Given the above, what Bush does or does not say in re "recommendations" is to be questioned, not accepted at face value. Thus, any comment Bush makes about NSA recommendations is a fatal assertion -- and warrants follow-up.

    The President has opened the door to additional discovery and questions. Even the RNC wants to discuss the issues. Is there something else Bush doesn't want the RNC to know?

    * * *

    Back to top

    The full House Judiciary is already turning on Gonzalez. Fox News reports Congressman Sensenbrenner [R-WI] is livid over Gonzalez' stonewalling.

    Narus STA 6400 is the NSA data mining equipment, which stands for Semantic Traffic Analysis. [Click ] Nobody just "walks into" a San Francisco AT&T office and says, "Do this." They have to have some tested-proven equipment: Where was this equipment demonstrated prior to instillation; and how did they know in 2002 "how big the room" had to be? point: This capability existed prior to Sept 2001.

    * * *

    [ What's interesting on the NARUS STA 6400, is that Google has different results for the same search. ]

    As a side note, consider what Wired Said about NARUS Click
    Semantic Traffic Analysis
    Warning: Uninitialized variable or array index or property (lifespan) in functions.phtml on line 2186

    Network service providers are betting their future on finding a more profitable alternative to flat-fee access. One solution is activity-based tiered billing, but for that to happen there needs to be a way to determine what each individual customer is up to - emailing, surfing, videoconferencing - at any given moment. A company called Narus says it's found the answer: semantic traffic analysis. Unfortunately, semantics are not solutions. Sure, the service dumps a litany of data about individual end users into an enormous database, but making cents out of those stats is your job - as is, alas, managing bandwidth. Narus is like the lazy in-law who tells you your house is a mess but won't lift a finger to help.

    In short, the same magazine that discounted Narus -- would now have us believe that there's a big story. Either

  • Wired got it wrong when it first wrote the article;

  • Wired was right when it firts wrote the article, and the current technology isn't any big deal

  • Wired is correctly reporting the NSA technology, but fails to discuss it's initial rejection that the approach was worthwhile.

    Is the NSA using something that really doesn't work; or was the Wired analysis skewed in some manner by those who wanted to distract attention from its capabilitiess?

    * * *

    Raw Reports that Gonzalez has a legal argument for domestic-domestic NSA monitoring, and no overseas connection.
    "[I]f the administration believes it can tap purely domestic phone calls between Americans without court approval, there is no limit to executive power. This is contrary to settled law and the most basic constitutional principles of the separation of powers." Adam B. Schiff [D-CA] [ Ref: NYT ]

    In light of the NYT revelations, please encourage Congressman Conyers to comment on HR 4976, -- See: HR 4976, the NSA Oversight Act via Click

    Note: I do not support the bill as crafted:

    1. lines 15-19 which use the language, "inherent authority." This is not true -- Executive been given by Congress through Article 1 Section 8 and FISA an exception to the warrant requirement -- that is not inherent authority to ignore the 4th Amendment.

    2. In re "civil liberties" -- "may have a serious" should be changed to "does have a serious".

    3. In re disclosure requirements in section 4, Bush already had a disclosure requirement under title 50 -- to report the illegal NSA activity to Congress -- but ignored that. This bill seems to repeat what has already been violated. To pass this bill simply affirms that there's been a violation, as would any changes to FISA. That's not a bill, is a matter for the Senate to review in re the conviction/removal phase. Need to discuss the "changes to FISA' in context of ex post facto -- that's illegal; and why is this "after the fact" bill permissible? This is absurd.

    * * *

    The President is in a trap, Either:

  • A. He knew about the violations of the law and failed to report them as required under 50 USC 513 [Details Click ] ; and/or

  • B. He failed to ensure the cited-NSA recommendations were consistent with FISA, as he asserts they were; but cannot explain why the NSA was doing what it was doing before these recommendations were made in the wake of September 2001; and/or

  • C. He ignored the pre Sept 2001 concerns by the Phone companies, and ordered the illegal monitoring to continue despite well documented concerns raised by the phone companies to the NSA/DoJ General Counsel and Inspectors Generals before Sept 2001

    Either way, he's violated the law.

    * * *

    It's time to get the House Judiciary to follow up on what the White House has said. Here are the questions that the House Judiciary needs to ask the Attorney General, as a follow-up to what the President said in North Carolina:

    1. The President asserts he got a recommendation from the NSA. What prompted the NSA recommendation to the White House?

    2. There are generally records of White House messages in the correspondence log. Which White House memo, question, order, or memoranda solicited this recommendation, and how was this documented?

    3. Once a tusker or a request for a recommendation is sought, the White House staff will engage in various communications. How was the NSA recommendation handled through the White House and DoD?

    4. We are led to believe that the White House had this recommendation after Sept 2001. However, there were other communications before Sept 2001 indicating that the NSA had already violated the FISA. When did the recommendation that the President referred to in North Carolina occur?

    5. There are a number of procedures which document what the NSA IG can and cannot do. [Ref] For example, if there are concerns about illegal activity, the NSA IG and Independent Oversight Board [IOB] are to discuss this information in an "urgent report" to Congress. This urgent report was reaffirmed as part of the FY06 Senate Intelligence Bill. [Ref] Were there other recommendations about the legality of the NSA activity; how did the Independent Oversight Board, NSA IG, and DoJ IG handle these issues?

    6. NSA typically has many programs. What other recommendations were there related to methods of violating FISA before and after Sept 2001?

    7. The recommendations once crafted then go through internal coordination. What role did the NSA IG, NSA General Counsel, DoJ IG, and DoJ General Counsel have in reviewing this recommendation?

    8. Does the report to Congress from the NSA IG and DoJ IG square with the dates the phone company General Counsels' raised concerns about the legality; is there a reason for the delay; were NSA IG and DoJ IG told by the National Intelligence Director not to review the matter or submit a report; if so, why was there not discussion with Congressional Staffers or Members of Congress to that affect as reaffirmed in the FY06 Senate Intelligence Bill?

    9. What events or recommendations prior to Sept 2001 pushed for the NSA monitoring prior to September 2001?

    10. There appear to be two different timelines. On one hand Gonzalez would have us believe that everything is fine. If this is true, then there should be no evidence to the contrary. Yet, in open court in a civil case – not a matter of a criminal investigation – we see the opposite. How do we reconcile [a] what Gonzalez would have us believe with [b] the widespread surveillance program AT&T was using as reported by Mark Klein, AT&T Technician [Click ]

    11. What role did AT&T have prior to Sept 2001 in coordination on the FISA changes with DoJ AG?

    12. The timelines that the White House has offered on what did or didn’t happen on the NSA program do not square with what was going on as reported from the various phone company general counsels. Rather, the General Counsels were well aware prior to Sept 2001 that there were issues on the FISA violations and liability. [ Six diagrams ] How do the White House and Gonzalez square the NSA recommendations -- that supposedly came after September 2001 -- with the early 2001 concerns from the phone companies?

    13. We're also getting inconsistent reports on what companies were or were not using as a basis for pre Sept 2001 monitoring. Some have said they only comply with lawful requests. [Click] Yet the pattern of conduct from the White House shows that -- in light of the FISA exceptions -- there is a very loose interpretation of what is or is not a reasonable exception, essentially this is the heart of the dispute: What was or was not lawful. [ Ref: Many exceptions FY06 Senate Intelligence Bill problems Click ] Who’s determining that the activity does or does not comply with the law; which exceptions are approved/assented to? Specifically, which people inside DoJ and the NSA were working with the phone companies to review the legality of the exceptions; and how were these raised prior to the summer of 2001?

    14. Given the clear FISA exceptions, and the telephone companies' documented concerns before Sept 2001 -- that the NSA requests were outside FISA -- why wasn't Congress notified, as required per 50 USC 513 [Details of this statute in re NSA and notifications Click ] ?

    15. We've heard many assertions that the NSA only intercepts American citizens if they talking to someone overseas. The NYT reports the opposite that domestic to domestic is permitted. This fails to deny what we've long suspected, but have asked repeated questions over: the Extent that NSA is monitoring Americans that have no link to anything, and there exists not basis to monitor them under any of the exceptions in the FISA statute. How does Gonzalez' assertions before the Senate Judiciary Committee -- on 06 Feb 2006, that there was a foreign connection -- and General Hayden's assertions -- in Dec 2005 that there was no way to have internal-to-internal intercepts -- square with [a] the actual NSA recommendations given to the President; and [b] real NSA monitoring? In light of the many exceptions, what assurances if any can Gonzalez or the White House give that the actual NSA recommendations did or did not include non-foreign-connected American citizens in the United States?


    We recommend the House Judiciary expand the discovery into specific NSA contractor Integrated Program Team [IPT] members, as outlined at this link [ Click ]

    * * *

    Confirmation of Data mining equipment starting in 2002: [ Click ]

    DoJ Counsel Anthony J. Coppolino [ Click ]

    AT&T General Counsel: Bruce A. Ericson [ Click ]