a citizen’s journal by Thomas Nephew

Enemy of the State (…Department Undersecretary)

Posted by Thomas Nephew on January 4th, 2006

Over the weekend I mentioned New Mexico Governor Bill Richardson’s concern that his conversations with Colin Powell may have been recorded as part of a “training mission” and read by John Bolton.

It turns out that “training mission” is not just some phrase an Albuquerque newspaper dreamed up. Training personnel in electronic surveillance (including domestic surveillance) is explicitly allowed by the Foreign Intelligence Surveillance Act (FISA) law in section 1805(g)(3) — but subsequent language in FISA makes clear that information gained this way is to be destroyed and is not to be shared with others.

On the other hand, my inner John Yoo — bad Yoo! bad! — craftily suggests there may be a “no penalty” loophole for disseminating the fruits of “training” surveillance. The law’s “Criminal sanctions” section 1809 reads in part as follows:

A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

Emphases added. Since training surveillance is authorized by statute, would there be no penalty for sharing training surveillance results — even if that was prohibited ? I’m obviously no lawyer, so I’m guessing/hoping the plain intent of the FISA law would outweigh hairsplitting of this sort.

The issue of a FISA “training surveillance” loophole was raised by Wayne Madsen in June of last year:

NSA insiders report that Hayden approved special intercept operations on behalf of Bolton and had them masked as “training missions” in order to get around internal NSA regulations that normally prohibit such eavesdropping on U.S. citizens.

For his part, Madsen didn’t suggest a criminal penalty loophole – he claimed that “USSID 18,” an executive branch directive, also criminalizes abuse of training surveillance results. I don’t see that, but maybe it was redacted out of the copy has online. Instead, Madsen’s point was that since training surveillance results are supposedly destroyed, they don’t appear in agency logs and can’t be subpoenaed by the Senate.

I don’t know what Madsen’s track record is; like many of his other stories, this one is obviously tough to corroborate. His bio, at least, seems right for a credible security policy gadfly:

Madsen is a former U.S. Naval officer who was assigned to the National Security Agency during the Reagan administration. He also has some twenty years experience in computer security and data privacy. He has also worked for the Naval Data Automation Command, Department of State, RCA Corporation, and Computer Sciences Corporation.

To his credit, Madsen was also generous enough to note he wasn’t the first to think of the “training surveillance” dodge — Hollywood got there first. In the movie “Enemy of the State” — “It’s not paranoia if they’re really after you” — the NSA director (played by Jon Voigt) relies on the “training surveillance” authority for the power to conduct unchecked domestic surveillance. Writer David Marconi gives one character played by Gene Hackman this line:

The government’s been in bed with the entire telecommunications industry since the forties. They’ve infected everything. They get into your bank statements, computer files, email, listen to your phone calls… Every wire, every airwave. The more technology used, the easier it is for them to keep tabs on you. It’s a brave new world out there. At least it better be.

So don’t bother with the New York Times — after all, when they’re not just making up stories, or getting them wildly wrong, they’re happy to just sit on the stories they actually get right. No, for the very freshest, high quality news — just go watch a movie!

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