Veteran national security journalist Barton Gellman wrote two days ago in the Washington Post that the NSA is hoovering up all your phone records all the time, and has been doing so since 2002, first under a Bush-era program that was ruled illegal and then from 2006 under the MAINWAY program that was given a fig-leaf of legal respectability(emphasis mine):
The Post has learned that similar orders [to the verizon order leaked by Snowden – SH] have been renewed every three months for other large U.S. phone companies, including Bell South and AT&T, since May 24, 2006. On that day, the surveillance court made a fundamental shift in its approach to Section 215 of the Patriot Act, which permits the FBI to compel production of “business records” that are relevant to a particular terrorism investigation and to share those in some circumstances with the NSA. Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database.
The NSA is also collecting vast chunks of internet data, and its all being held for at least five years. They say they try to make sure that innocents (as long as they are American innocents) don’t get their data read but they won’t give details on how they do that, it’s all classified – although the definition of innocent may be meaningless to a regime that defines “relevant to terrorism” as “everything”.
And that’s to say nothing of what allies like Britain’s GCHQ may be doing under the old Echelon “you spy on mine and I’ll spy on yours” deals still in effect.
Yet it seems this massive surveillance infrastructure is…well…not very useful.
Today, CNN’s Peter Bergen poured water on official claims that NSA spying has prevented “dozens” of terrorist attacks at home and abroad.
The public record, which is quite rich when it comes to jihadist terrorism cases, suggests that the NSA surveillance yielded little of major value to prevent numerous attacks in the United States, but government officials may be able to point to a number of attacks that were averted overseas.
That may not do much to dampen down the political firestorm that has gathered around the NSA surveillance programs. After all, these have been justified because they have supposedly helped to keep Americans safe at home.
Homegrown jihadist extremists have mounted 42 plots to conduct attacks within the United States since 2001. Of those plots, nine involved an actual terrorist act that was not prevented by any type of government action, such as the failed attempt by Faisal Shahzad to blow up a car bomb in Times Square on May 1, 2010.
Of the remaining 33 plots, the public record shows that at least 29 were uncovered by traditional law enforcement methods, such as the use of informants, reliance on community tips about suspicious activity and other standard policing practices.
He also shows that two specific individuals the NSA has pointed to, Zazi in the US and David Headley in India, were identified by less esoteric law enforcement procedures.
It’s worth reading a USA Today interview with whistleblowers Thomas Drake, William Binney and J. Kirk Wiebe. Especially this part:
Q: What did you learn from the document — the Verizon warrant issued by the Foreign Intelligence Surveillance Court — that Snowden leaked?
Drake: It’s an extraordinary order. I mean, it’s the first time we’ve publicly seen an actual, secret, surveillance-court order. I don’t really want to call it “foreign intelligence” (court) anymore, because I think it’s just become a surveillance court, OK? And we are all foreigners now. By virtue of that order, every single phone record that Verizon has is turned over each and every day to NSA.
There is no probable cause. There is no indication of any kind of counterterrorism investigation or operation. It’s simply: “Give us the data.” …
There’s really two other factors here in the order that you could get at. One is that the FBI requesting the data. And two, the order directs Verizon to pass all that data to NSA, not the FBI.
Binney: What it is really saying is the NSA becomes a processing service for the FBI to use to interrogate information directly. … The implications are that everybody’s privacy is violated, and it can retroactively analyze the activity of anybody in the country back almost 12 years.
Now, the other point that is important about that is the serial number of the order: 13-dash-80. That means it’s the 80th order of the court in 2013. … Those orders are issued every quarter, and this is the second quarter, so you have to divide 80 by two and you get 40.
If you make the assumption that all those orders have to deal with companies and the turnover of material by those companies to the government, then there are at least 40 companies involved in that transfer of information. However, if Verizon, which is Order No. 80, and the first quarter got order No. 1 — then there can be as many as 79 companies involved.
So somewhere between 40 and 79 is the number of companies, Internet and telecom companies, that are participating in this data transfer in the NSA.
Radack: I consider this to be an unlawful order. While I am glad that we finally have something tangible to look at, this order came from the Foreign Intelligence Surveillance Court. They have no jurisdiction to authorize domestic-to-domestic surveillance.
Binney: Not surprised, but it’s documentation that can’t be refuted.
Wiebe: It’s formal proof of our suspicions.
Well now…today the NSA’s Gen. Alexander is asking for yet more legal immunity for companies working with the NSA. I doubt that’s a good idea.