On Friday, President Obama held a televised press conference about proposed reforms to the Foreign Intelligence Surveillance Court (FISC). While discussing leaks by former Booz Allen Hamilton analyst Edward Snowden, the president said, “Unfortunately, rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate, but not always fully informed way.”
“Not always fully informed” is a bit of an understatement.
Earlier that day, I posted an article documenting the top ten most inaccurate and exaggerated claims made by agenda-journalists covering the Edward Snowden NSA beat. I specifically excluded articles that are “self-debunking” because the list probably would’ve doubled in length. Self-debunking occurs when the central claim of an NSA article is undermined deep within the article itself. It’s become a bit of a game to click over to a new NSA bombshell post and then to count how many paragraphs before the headline and lede are contradicted by a brief mention of actual policy, usually involving a note about the requirement for individual warrants.
But a new NSA bombshell article in The Guardian, posted on Friday and written by James Ball and Spencer Ackerman about a secret FISA Amendments Act Section 702 glossary document (702 authorized the PRISM system), didn’t bury the self-debunking at all. This time, it happened before the lede paragraph.
The article’s sensationalistic headline makes it appear as if the entire NSA story has reached new levels of unconstitutional egregiousness: “NSA loophole allows warrantless search for US citizens’ emails and phone calls.” And the subheadline: “Exclusive: Spy agency has secret backdoor permission to search databases for individual Americans’ communications.”
The keyword here was “permission.” Someone, Ackerman and Ball wrote, has secretly granted authorization to NSA analysts to read emails and listen to phone calls belonging to U.S. persons — without warrants! Analysts apparently have “permission” to do this.
The point of such a headline is obviously to serve as link-bait, as well as to incite further angst and paranoia among observers who appear to be addicted to outrage — those who can’t wait to get their routine fix of outrage porn, reality be damned. The hope is that these people won’t read thoroughly or critically enough to notice that analysts do not — repeat, do not — have permission to do this.
How do we know for sure?
The Guardian‘s allegedly incriminating FAA 702 document specifically says, “…analysts may NOT/NOT implement any USP queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI.” The jargon “NOT/NOT” means “not, repeat not.” And it’s in all-caps, presumably for emphasis.
NSA analysts are explicitly “NOT [repeat] NOT” allowed to do what the article claims they have “permission” to do.
This “NOT/NOT” line appears in a graphical excerpt from the document, posted above the lede paragraph, and just below the byline. Yet readers are led to infer that analysts are doing it now, and without any oversight — administratively, judicially or otherwise.
So, this FAA 702 glossary document, updated in June 2012, states that analysts are not allowed to perform a search for metadata keywords or “identifiers” gleaned from inadvertently-collected communications by U.S. persons until the creation and implementation of “effective oversight” measures, which are to be approved by the Department of Justice and the Director of National Intelligence. By way of a refresher: the inadvertently-collected information is phone call and email “metadata” — which, again, refers to the “to” and “from” lines and so forth, and doesn’t include the content of the communications. Ackerman and Ball didn’t use the word “content” anywhere in the article.
Astonishingly enough, the article went on to state: “The document… does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place.”
Unbelievable. They don’t have any idea whether these searches have ever occurred. And as near as we can tell, the searches haven’t occurred. Why? Because the document expressly forbids the searches from being executed. And, for all we know, the “effective oversight process” could include individual warrants; it could involve additional layers of supervisory oversight or the compiling of justifications for querying the metadata. We don’t know. Furthermore, the document excerpt provided by The Guardian includes the following lines:
“U.S. persons may NOT be targeted under FAA Section 702.
Persons in the US may NOT be targeted under FAA Section 702.
Accounts used, shared or in any way accessed by USPs or persons in the US may NOT be targeted or remain on target under FAA Section 702.”
And in the “update”:
“Until further notice, analysts must ensure that database queries… of any USP… are NOT run against collected FAA 702 data.”
I’d say that’s pretty damn emphatic. The all-caps word “NOT” appears in the excerpt a total of six times. Referring back to the subheadline, how the hell did Ackerman and Ball ascertain “permission” out of this document? It explicitly instructs analysts that they do not, repeat NOT have permission to do it. Worse yet, the article included leading phrases like “enabling it to search for US citizens’ email,” and “rule change allows NSA operatives to hunt for individual Americans’ communications” [emphasis mine]. Immediately following the latter phrase, the authors hedged by writing “potentially allowing warrantless searches,” which, by the way, falls in line with a well-worn pattern: the conflation of the ability to do something with the specific policy mandate to do it.
This article was a mess, and anyone reading anything posted by The Guardian on this NSA beat ought to proceed with caution and a critical eye.
The other day, Marc Ambinder, whose informed posts in The Week about NSA have been incredibly valuable, inexplicably tweeted that The Guardian deserves a Pulitzer Prize for its NSA coverage. I don’t think he was joking. Based on what I’ve observed, however, The Guardian‘s reporting has not only undermined the debate by besmirching it with misleading claims and wild sensationalism, but it also represents a dark chapter in the development of digital journalism by elevating links, retweets and traffic above veracity and journalistic integrity.
Edward Snowden chose to give The Guardian access to his stash of classified NSA documents. The site’s roster of staff writers and editors didn’t seek out and attain this information via shoe leather and tenacity. This alone shouldn’t make The Guardian worthy of a Pulitzer. It only makes The Guardian one of several chosen news media outlets to have lucked its way into a big story. And the manner in which they’ve handled the documents has been a disaster.