US warned: surveillance reform hinges on change to Reagan executive order

http://www.theguardian.com/world/2014/jul/23/nsa-surveillance-reform-reagan-order

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John Napier Tye is not Edward Snowden. He says he has no surveillance documents to disclose to journalists. He takes a nuanced position on Snowden's disclosures.

Yet the 38-year old former State Department official has raised a Snowden-like alarm that Americans' communication data remains highly vulnerable to surreptitious collection by the National Security Agency – and will remain vulnerable despite the legislative fixes wending through Congress to redress the bulk domestic phone data collection Snowden revealed.

Like Snowden, Tye means to spark a debate on the proper boundaries of NSA authorities. His focus is on an obscure, Reagan-era executive order that serves as a foundational set of rules for the intelligence apparatus. The order, known as Executive Order 12333, renders the current surveillance debate hollow, he said, even as it shows signs of traction in the Senate.

"Without reform of activities under 12333, changes to the 215 program won't address the major challenges to Americans' privacy from the NSA," Tye, who until April worked on promoting internet freedom issues at Foggy Bottom, told the Guardian, using legal shorthand for the domestic phone data collection.

Without recourse to the trove of documentation Snowden disclosed to journalists – and speaking somewhat obliquely to underscore his stated refusal to discuss classified information – Tye said that 12333 provides NSA with a pathway to collect and retain Americans' data without a warrant, routing around laws intend to restrict and control both.

The only real restrictions, according to Tye and the text of the order, are that the collection must occur outside the borders of the United States; and the data – communications content as well as the records of those communications – must be, as the text reads, "obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation."

Tye said he would not talk about actual intelligence operations, but said: “To the extent US person information is either stored outside the United States, routed outside the United States, in transit outside the United States, it's possible for it to be incidentally collected under 12333."

Various NSA and intelligence officials told the Guardian in the fall that they cannot use 12333 to conduct surveillance prohibited by laws such as the Foreign Intelligence Surveillance Act. Yet based on Snowden's leaks, the Washington Post revealed in October that 12333 was the wellspring of NSA's collection of information in transition between Google and Yahoo data centers outside the US.

In an op-ed for the Washington Post last weekend, Tye obliquely urged that "Americans dig deeper" into 12333.

"Current US practices under 12333 violate the fourth amendment," said Tye, a Yale Law School graduate, said.

Tye's op-ed came as the government's privacy watchdog, the Privacy and Civil Liberties Oversight Board, was already considering an investigation into 12333 – which would represent the first outside inquest into the executive order in its 33-year history. On Wednesday, during a hearing in which Tye spoke, the board announced it will launch such an inquest, though it has yet to decide on the scope of investigating 12333.

Executive order 12333 is not a law. Within the intelligence agencies, however, "it is the Bible," a former CIA and Senate intelligence committee lawyer observed last year to the Guardian.

Written in 1981 to delineate intelligence practices in the wake of a bout of congressional restrictions on intelligence, activities undertaken under 12333 are not subject to even the secret congressional and judicial oversight that NSA actions under Fisa require. The claim of authority for 12333 is the president of the United States' constitutional powers for the conduct of foreign policy.

"The power to conduct foreign affairs cannot override Americans' rights to be free from unreasonable searches and seizures," Tye argued.

Tye said "basically the last thing I did" at the State Department was to take his concerns about the privacy threat represented by 12333 to the inspector general of the State Department and the congressional committees overseeing intelligence. Weeks after formally leaving government service, he met with the NSA inspector general as well.

His actions amount effectively to a dare to the oversight mechanisms, long criticized for their toothlessness on intelligence whistleblowers, to demonstrate their robustness. The NSA initially claimed it could not find any record of Snowden electing to notify officials about his concerns on bulk surveillance after "extensive investigation" but in May released an email Snowden sent to the NSA general counsel's office inquiring about the legal hierarchy undergirding of surveillance practices.

"It seems to imply executive orders have the same precedence as law," Snowden emailed in April 2013.

"Many officials in the US government have said that he [Snowden] should have gone through these legal channels, he should have filed these complaints, and the complaint that I've filed is a chance for the government to show that these are meaningful channels," Tye said.

His lawyer, Mark Zaid, represents intelligence whistleblowers and has been a fervent critic of Snowden.

"Tye serves as a shining example of how a national security whistleblower should raise his concerns lawfully and give the system and public time to debate the concerns, rather than decide unilaterally as Snowden did, and without even trying, that the only available avenue is to act criminally and risk harm to our country by leaking classified information," Zaid said.

Tye, a Massachusetts native, took a circuitous route to the State Department. After attending Duke, and Oxford as a Rhodes scholar, he never joined the foreign service. He instead worked at the Southern Poverty Law Center "writing about hate groups, neo-Nazis" and practicing housing and civil rights law in New Orleans. Tye came to the State Department in 2011 after a former Yale law teacher turned assistant secretary of state, Michael Posner, recruited him.

Posner, now a professor at New York University, called Tye "conscientious, diligent and honest. A very dedicated public servant".

Posner declined to give his own perspective on 12333 or Tye's op-ed, but commented: "I am broadly concerned that there needs to be a broader public debate about the scope of US surveillance, the consequences for privacy, and the way information is both collected and used."

Any such broader public debate appears to be outpaced by Congress and the administration. Months after the House passed a weakened bill to divest NSA of its domestic phone records database – a bill that would still permit NSA to obtain and analyze massive volumes of Americans' call records on a single court order - Senator Patrick Leahy, a Vermont Democrat, said this week that he is close to a deal with the White House to move a counterpart bill in the Senate.

Such a deal would allow the bill to pass and Obama to sign it into law before the congressional session expires. It would also jump ahead of the debate Tye means to spark about the breadth of the government's tools to access data about the emails, calls, texts and internet habits of Americans.

"I'm actually not a pessimist that these policies can't change," Tye said.

"I am relatively speaking an optimist, because what we've seen is that once there was some democratic accountability on the section 215 program, the president felt like it was unsustainable and he felt like he had to propose changes to it. Congress is now considering changes to that program and in my mind, this shows that if we actually have a public debate about some of these programs, it is possible to change them. And that debate needs to happen for 12333."

And his views on Snowden?

"Reasonable people can come to different conclusions about how Snowden did what he did. Some people say that it was really important and he's a hero. Some people say he's a criminal and should be prosecuted. I took a different path from him in coming forward with my concerns.

"I filed complaints with the inspectors general of the State Department and the NSA, I went to the intelligence committees in Congress, I cleared my op-ed before it was published. At the same, even President Obama has acknowledged that the issues raised since those disclosures have been important for our democracy."