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Obama's rule changes opened door for NSA intercepts of Americans to reach political hands


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.

Dozens of times in 2016, those intelligence reports identified Americans who were directly intercepted talking to foreign sources or were the subject of conversations between two or more monitored foreign figures. Sometimes the Americans’ names were officially unmasked; other times they were so specifically described in the reports that their identities were readily discernible. Among those cleared to request and consume unmasked NSA-based intelligence reports about U.S. citizens were Obama’s national security adviser Susan Rice, his CIA Director John Brennan and then-Attorney General Loretta Lynch.

Some intercepted communications from November to January involved Trump transition figures or foreign figures' perceptions of the incoming president and his administration. Intercepts involving congressional figures also have been unmasked occasionally for some time.

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.

2011 NSA minimization procedures submitted to the FISA Court

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.

"We obviously are concerned that the authorities that are granted are not abused, and that’s why we have a strict compliance regimen.”

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.

The intelligence community fought hard over the last decade starting under George W. Bush and continuing under Obama to gain greater access to NSA intercepts of Americans overseas, citing the growing challenges of stopping lone wolf terrorists, state-sponsored hackers, and foreign threats. But those directly familiar with the processes acknowledged the breadth of access today could be abused for political espionage or pure prurient interests, instead of just compelling national security interests.

“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.”

Before the Russia election scandal catapulted scrutiny of the NSA monitoring of Americans to new heights, red flags were being raised by civil liberties experts, but given little media attention.

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.”

The revelations are important on multiple political and policy fronts.

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.

Nunes, as well as Trump supporters, will be trying to determine if that access was warranted or a backdoor form of political espionage by an outgoing administration trying to monitor its successor on the world stage.

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.

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Trump is seeking some sort of vindication for alleging Obama ordered that he be wiretapped at Trump Tower during the campaign -- a claim the FBI and NSA directors, as well as Nunes, have refuted. Any proof Obama aides were using NSA-enriched intelligence reports to monitor his transition on the world stage could embolden the new president. But perhaps the most consequential outcome of the new revelations is that it may impact the NSA’s primary authority to intercept foreigners: Section 702 of the Foreign Intelligence Surveillance Act is up for renewal at the end of the year.

Oversight committees in Congress and the intelligence community will likely have to address civil liberty experts that the changes Obama made are necessary for national security and not abused. They may also entertain proposals to require more oversight of unmasking procedures than previously exercised.

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.

If the government wants to wiretap or electronically surveil an American or a foreigner on U.S. soil, it must obtain court permission for what is known as a FISA warrant, which has strict limitations on time and collection and who can read the intercepted information.

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.

For years, the NSA has been required to follow strict rules to protect the accidental intercepts of Americans from being consumed or misused by other government agencies. The rules required a process known as minimization, where the identity and information about an American who was intercepted is redacted or masked with generic references like “American No. 1.”

The number of senior government officials who could approve unmasking had been limited to just a few, like the NSA director himself.

But as the U.S. intelligence community became more worried over the last decade about its ability to locate lone wolf terrorists, foreign spies and hackers in an increasingly digital world, Bush and Obama began relaxing the rules for minimization and increasing access to NSA collected information on Americans. In short, the Obama administration created a standard set of “exceptions” to the minimization rules.

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.

2015 rule changes governing NSA intercepts

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.

January 2017 changes to Executive Order 12333

“This raises serious concerns that agencies that have responsibilities such as prosecuting domestic crimes, regulating our financial policy, and enforcing our immigration laws will now have access to a wealth of personal information that could be misused. Congress needs to take action to regulate and provide oversight over these activities,” ACLU legislative counsel Neema Singh Guliani warned in January.

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.

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