F. Michael Maloof, staff writer for WND and G2Bulletin, is a former senior security policy analyst in the office of the secretary of defense.More ↓Less ↑
WASHINGTON — The National Security Agency already has access to all the content of intercepted emails and phone calls, not just the “metadata” such as who contacted who, when and where, Defense sources have told WND.
The sources confirm President Obama’s effective admission Friday that the government is indeed collecting the content of calls.
WND reported, Obama said that “if anybody in government wanted to go further than just that top-line data and wanted to, for example, listen to Jackie Calmes’ phone call, they’d have to go back to a federal judge and, and, and indicate why, in fact, they were doing further – further probing.”
The president essentially said the NSA has access to the content and he is asking the public to trust the spy agency would go to a judge for permission if it wanted to look at it.
Making matters worse, there are people in the intelligence community who “aren’t concerned about the law or their oaths,” a Department of Defense intelligence training officer told WND.
As debate rages over revelations of U.S. government secret surveillance of U.S. citizens’ phones and emails, the U.S. military is reinforcing training of intelligence officers on existing laws and executive orders regarding limits to spying on U.S. citizens.
One DOD source said Judge Advocate General, or JAG, officers are going around lecturing officers on intelligence oversight which covers the ground rules for the military on the collection and storage of intelligence on U.S. citizens.
Such rules and procedures for the military stem from Executive Order 12333. It outlines the goals, activities, responsibilities and conduct of intelligence activities related to the national intelligence process.
An all-inclusive order on the intelligence process, it applies to all military services as well as all federal and state defense organizations conducting intelligence operations.
After the EO was signed by President Ronald Reagan on Dec. 4, 1981, the Department of Defense issued a Department of Defense Directive 5240.1R, which sets out procedures to enforce EO 12333.
It details procedures for the collection, retention and dissemination of intelligence gathered about U.S. citizens. Like the EO, the DOD directive applies to all federal and state defense organizations that conduct intelligence operations.
All such agencies handling classified information have developed regulations similar to the DOD for implementing the executive order.
According to informed sources, military intelligence can collect information on a U.S. citizen under special circumstances. It is supposed to be highly regulated and over a very limited time with regular review.
The investigative arms of the military services such as the Air Force’s Office of Special Investigations, the Army’s Criminal Investigations Command and the Navy’s Naval Criminal Investigative Service tend to be “dual-hatted.”
This means they can conduct criminal investigations on members of their respective services and collect data on where those investigations lead outside their immediate purview. In addition, they can handle intelligence, which then makes their conduct in the use of that information, especially data gathered on U.S. citizens, even more subject to scrutiny.
Given the clarity of the regulations that govern the handling of intelligence gathering on U.S. citizens, concern and perhaps confusion have developed over the authority of the National Security Agency, or NSA, to collect data on U.S. citizens.
Under the rules of the road, the NSA – a DOD component and subject to EO 12333 and DODD 5240.1R – must go before a top secret court every three months and request authority to collect all telephone and email data.
The policy came about after 9/11. The Bush administration initially had instituted surveillance based on presidential powers to monitor calls between Americans and suspected terrorists abroad.
Then, Congress amended the existing law on wiretapping by intelligence agencies — the 1978 Foreign Intelligence Surveillance Act (FISA) — that gave legislative authority for the program and required supervision by the special secret court the 1978 act established.
While the collection is supposed to cover only phone numbers and location and time of calls, or looking up and even identifying the subject of what is being viewed on emails, the NSA already has all the content. Technically, the NSA would need a court order to look at the content but invariably agents can and do readily access such information without a separate court order, sources report.
Consequently, the NSA has all the data on U.S. citizens’ phone calls and emails, particularly their content, with the risk that some of that data could be selectively released without authorization.
The development has raised the question of whether the Fourth Amendment of the Constitution is being violated. It guards against unreasonable searches and seizures.
The Fourth Amendment reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
While a number of constitutional lawyers believe the actions of the NSA are in violation of the Fourth Amendment, there have been no means to challenge the collection of data in court due to the secrecy surrounding access to what has been collected by the intelligence community.
The selected release of highly private data became a separate issue recently in revelations surrounding the Internal Revenue Service. Selective information of various individuals and groups was released to their political opponents.
Numerous congressional and internal IRS investigations are under way, but for many U.S. citizens, trust and credibility have been seriously eroded.
A similar breach of trust also may be occurring within the U.S. intelligence community.
While the law and the regulations are clear, the DOD source involved in training intelligence officers acknowledged that there are “quite a few people in government that aren’t concerned about the law or their oaths.”
“I don’t remember that (EO) 12333 was overturned or rendered null and void,” the DOD source said, “and certainly nobody lower than the president can arbitrarily decide that intelligence oversight law was no longer applicable.”
Yet, there are reports now that the U.S. government intends to open a criminal investigation over who leaked NSA information to the press rather than deal with concerns over the potential for violation of U.S. citizens’ rights to privacy and access to private information without due process.