Friday, May 1, 2015
Stellarwind Really Blows
In the aftermath of 9/11/01, in contravention of the Foreign Intelligence Surveillance Act, President George W. Bush authorized the National Security Agency to begin warrantless wiretaps of international electronic communications. Bolstered but not fully authorized by the subsequent Patriot Act (Congress did not pass the necessary enabling legislation until 2007), still mired in legal haze, a new program – codenamed Stellarwind – began, cloaked in secrecy and destined to become the greatest invasion of privacy the world had ever seen.
The Foreign Intelligence Courts weren’t even informed about the illicit program until 2002, and the Department of Justice’s senior intelligence lawyer, James Baker, only stumbled upon the program by accident. A recent and heavily redacted report, forced by a New York Times Freedom of Information Act lawsuit, tells the story. “[Baker] came across ‘strange, unattributed’ language in an application for an ordinary surveillance warrant and figured it out, then insisted on telling Judge [Royce] Lamberth [then-senior Intelligence Court judge]. Mr. Baker is now the general counsel to the F.B.I.
“It also says that Mr. Baker developed procedures to make sure that warrant applications using information from Stellarwind went only to the judges who knew about the program: first Judge Lamberth and then his successor, Judge Colleen Kollar-Kotelly.
“The White House would not let Judge Kollar-Kotelly keep a copy of a letter written by a Justice Department lawyer, John C. Yoo, explaining the claimed legal basis of the program, and it rejected a request by Attorney General John Ashcroft to tell his deputy, Larry Thompson, about the program.” New York Times, April 24th.
It seems that Mr. Yoo unilaterally determined that the restrictions of the Surveillance Act were not intended to cover wartime situations and opined accordingly. Curtains, drapes and barriers to support mega-secrecy enveloped the entire program, and the extent of the governmental intrusive sweep really didn’t come to light until the rather broad revelations from government-contractor-now-under-Russian-protection Edward Snowden’s leaks of government files in 2013.
But perhaps the most surprising information in the above-report revolved around how such massive secrecy actually impaired the effectiveness of this massive data intrusion, one that embarrassed us over discoveries that we penetrated the personal communications of world leaders, including those of our close allies. The system was clumsy, over-saturated with vast pools of data, and lumbered under technological limitations because opening the program to the best and most effective systems would have exposed highly sensitive information to too many people. Internecine bureaucratic battles, much remaining redacted, struggled to effect changes to improve operational effectiveness, but the necessity of ultra-secrecy never completely allowed those allowed to know sufficient leeway to fix the problems sufficiently. It was an expensive, illegal program with severely limited effectiveness.
To use data mined from this program required passing information to operatives, like the F.B.I., to investigate. But because the program was so secret, the source of the information was not revealed to the relevant investigating agency. “F.B.I. agents were asked to scrutinize phone numbers deemed suspicious because of information from the program. But the agents were not told why the numbers had been deemed suspicious, only ‘not to use the information in legal or judicial proceedings.’
“That made some agents uncomfortable, and it was not clear how such mysterious leads fit into their rules for investigations. The Justice Department created the new type of investigation, initially called a ‘threat assessment,’ which could be opened with lower-grade tips. Agents now use them tens of thousands of times a year.
“But little came of the Stellarwind tips. In 2004, the F.B.I. looked at a sampling of all the tips to see how many had made a ‘significant contribution’ to identifying a terrorist, deporting a terrorism suspect, or developing a confidential informant about terrorists.
“Just 1.2 percent of the tips from 2001 to 2004 had made such a contribution. Two years later, the F.B.I. reviewed all the leads from the warrantless wiretapping part of Stellarwind between August 2004 and January 2006. None had proved useful.” NY Times. The “successful” results were redacted.
The fundamental questions of how to operate such an intelligence program on any sort of moral plane within a society that touts itself as open and democratic are deeply troubling. How much “like them” must we act before we loose our own legitimacy? How can we reasonably protect ourselves and still remain an open and free democracy? Or have we crossed that line as part of a seemingly never-ending shift towards a plutocracy with a government that operates all-too-often within a shroud of menacing secrecy? If the very secrecy that our government claimed was essential rendered this intrusion into the personal lives of so many fairly ineffective, is there a lesson for policy-makers that might just limit such overreaching programs in the future?
I’m Peter Dekom, and the United States has an unfortunate pattern of simply not learning from its most colossal historical mistakes.