All right y'all, welcome back to the show on Santel War Radio.
I'm Scott Horton and Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation.
She's the first guest on our show today.
Welcome Jennifer, how are you?
Thanks, I'm fine.
How are you doing?
I'm doing great.
Appreciate you joining us today and you in particular, but also everybody at EFF.org, the Electronic Frontier Foundation.
You do such great work, but the one I want to talk to you about today was published on September 22nd.
Newly released documents revealed Defense Department intelligence violations.
I just love EFF and the ACLU and EPIC and even Judicial Watch and whoever is suing the government all day and making them at least disclose documents, Freedom of Information Act and Discovery and these kinds of things.
Y'all are my heroes, this is how we get the truth and this is exactly the perfect example of what I'm talking about, the kinds of things that can be discovered by trudging through the official process to get these secrets revealed and some pretty shocking stuff.
So why don't you go ahead and tell us.
Well, so we issued a couple of Freedom of Information Act requests to various intelligence agencies back in 2007 and 2009 and we were looking specifically in these FOIA requests for reports that were submitted to a body called the Intelligence Oversight Board and this body was set up by executive order.
It was supposed to be made up of civilians with top secret level security clearance to provide oversight to all the various intelligence agencies and so we were looking for reports that were submitted to the Intelligence Oversight Board from, for example, the Department of Defense, the CIA, the FBI, NSA, all of the intelligence agencies and the records that we received from the agencies revealed quite a lot of violations that we never would have known about otherwise.
We've written about them pretty extensively on our website and then the documents that you were asking about most recently, Scott, these are records that had been re-released to us by the Department of Defense.
So they were sent to us originally but they were fully redacted so we couldn't find any information about them and then thanks to a Supreme Court case this spring, the Department of Defense was forced to go back and look over its previous redactions and get rid of some of them and thanks to that court case we received some new documents that told us some pretty interesting information about what the Department of Defense was doing in the last decade or so.
For example, the records that we received showed that the Army issued NSLs for civilian telephone transactions and toll records.
Now the NSL statute only allows the FBI to issue NSLs so these are secret sort of subpoenas that the FBI can send out and they can request information on civilians and citizens in the United States and there's a gag order that's associated with them so any provider that receives an NSL can't even talk about it to anybody except their attorney.
Now that NSL statute, that's part of the Patriot Act, correct?
It is, yeah.
It was actually part of, it was a statute before the Patriot Act that the Patriot Act strengthened it and allowed it to be applied much more broadly.
And specifically here, as you're saying, I think this section of the Patriot Act or even the law before that has nothing to do with granting power to the Department of Defense whatsoever.
That's correct.
And does that include, well because the National Security Agency is the military kind of but it's not directly under the Pentagon, how does that work?
Well the NSA is part of the Department of Defense but it's pretty much its own agency.
So these NSLs that we heard about were issued by the Army which is not part of the NSA at all.
I mean it's just your basic Army guys.
And now so I think probably the most famous of these stories is something that we've heard of before only now you have much more information about it and that was the DOD investigating a meeting here in Austin at the University of Texas, a conference, a public conference.
Yep, yeah it's pretty incredible.
It was at the UT Law School and it sounds like it was a conference on Islamic law.
And it sounds like the military went to the conference, some military lawyers went to the conference in plainclothes and didn't disclose that they were affiliated with the military.
And then when some conference attendees figured out who they were and started questioning why they were there, the military decided to investigate those people.
And how far did that go and how illegal was it?
Well...
You got held accountable.
That's a good question.
We don't know so much about what happened to the special agents, the Army special agents after the fact other than the fact that a report was filed.
But you know it's against the law for the military to be investigating citizens in the United States.
The way our government is set up there should be a pretty strong line between military and civilian investigations.
And the Army has definitely crossed over that line multiple times in the last decade.
How many times?
That you know of?
You know I don't have exact numbers but we have a number of reports on our website that we've written about and we'll be working on a pretty extensive report on all of the violations this fall.
So we hope to get that out in the spring.
Okay now can you give us a couple other examples besides UT?
Well the military was also investigating a bunch of peace organizations and they were doing surveillance on the organizations and also sort of collecting information about people affiliated with the organizations.
They were investigating Planned Parenthood and a white supremacist organization.
The Department of Defense was investigating Planned Parenthood?
Yeah yeah we don't really know too much more about it than that but yeah they were.
I mean I just singled that one out and I'd like to let you get back to the list there but that just seems it's the one that no matter how far I twist my imagination I can't figure out what in the world they could possibly be interested in there.
Yeah I don't know.
I have no idea.
I mean it's you know you can't justify it but it sort of makes sense that the Army might be interested in a group called Alaskans for Peace and Justice or maybe some of the organizations that did you know anti-recruiting stuff in the last decade.
Like I said you can't justify it but you can sort of understand why the Army might be worried about it.
But Planned Parenthood.
Peace and Justice that's bad news for the Pentagon.
They don't want that.
But yeah Planned Parenthood I can't figure out what that could possibly be about unless it was a particular person that they you know were following from something else that was involved with them somehow or something.
I don't know.
Maybe.
Who knows.
Or maybe it's like Mikey Weinstein talked about some of the you know most fundamentalist Christians taking over in the Air Force in the highest reaches of the officer corps and it was something like that.
A religious thing using the DoD.
I don't know.
But so you guys are pursuing that and trying to find out more I guess right?
Yeah we are.
So we're still in the middle of our FOIA litigation.
The next step is we'll be going to court this fall to challenge the redactions that all of the agencies used in all these records.
So we'll be arguing that the agencies you know they withheld too much information and should release more information to us.
And now part of this too is about joint missions where the FBI and the DoD work together.
And I think you say that it's the DoD side that went undercover into U.S. organization rather than the FBI side which would have been legal.
Yeah that's true and and who knows why that happened.
This is the NCIS the Naval Criminal Investigative Service was working with the FBI on a joint mission and it's not really clear why the NCIS the person affiliated with NCIS went undercover like you said the FBI could have done it if they'd gone through sort of proper legal channels.
But yeah the DoD the Department of Defense should not be getting involved in U.S. organization's activities.
All right well hold it right there.
We're going to go out and take this break.
We'll be back with Jennifer Lynch from the Electronic Frontier Foundation EFF.org.
Newly released documents reveal Defense Department intelligence violations.
All right y'all welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm talking with Jennifer Lynch from the Electronic Frontier Foundation.
They're defending your rights and the digital world website is EFF.org.
And we're talking about well one article that she wrote on September 22nd.
Boy are you productive.
I'm looking through your archives here and it's incredible actually.
This one is called newly released documents reveal Defense Department intelligence violations.
And before the break we're talking about this joint project where the FBI and the army I guess were working together.
The naval investigative service was working together with the FBI and how it was the military man who went undercover instead of the FBI guy.
And I forgot exactly which point we left off at.
I was going to go maybe if you can tell us more details about that that'd be great.
I was going to wonder why don't they outsource all this to the FBI?
Why would they be involved in doing any of this?
I guess I want to say because they could get in trouble over it but maybe they can't.
And maybe that's why they just do it if they feel like it or I don't know.
Yeah it's a good question.
I don't know.
You know we don't know too much about what the operation was and why the navy was involved at all.
You know it was a joint counter espionage operation.
There must have been some sort of military tie or link for the operation and then some sort of domestic aspect to it as well.
But yeah it's unclear.
I mean a lot of the reports that we've received of these intelligence violations just show a lot of sloppiness within the government.
I mean there were some pretty bad acts but there's just a lot of sloppiness and this could be one of those situations.
It could be just you know the two intelligence organizations were working together and they just didn't think about the fact that it needed to be the FBI that looked into domestic activities.
I mean we saw that also in the other report that we wrote about with the army issued NSLs.
You know it appears that the army was working with the FBI and the FBI could have issued the NSLs but the army did.
And the crazy thing about it I think is that according to the report neither the army unit nor the FBI field offices that you know they were working together on this were aware that the request had to be made by the FBI.
Now that's just sloppiness.
If the FBI doesn't know that they're the only branch of the government that can issue NSLs you know how can we expect them to issue them appropriately?
Well now the NSA can too though right?
Um the NSA.
No sorry.
Yeah so the FBI has primary responsibility.
I mean the NSA has you know you sort of wonder whether they're doing any NSLs at all considering they can pretty much wiretap all of our conversations in the country.
Yeah so they don't really need tools like NSLs.
But yeah the FBI can issue NSLs for a few distinct types of information.
Transaction and toll records is one.
Financial records is another.
Well I mean the thing is too if you think back what a year or two Robert Mueller the head of the FBI admitted I guess the inspector general did a report right that said that they had been abusing the Patriot Act and their national security letter powers like crazy.
I mean NSL basically means a cop writes himself a warrant right?
Yep pretty much.
Yeah and nobody the recipient of that warrant whether it's your phone company or your bank can't talk to anybody other than their lawyer about it and they're gagged indefinitely.
They can go back to the FBI on a yearly basis on an annual basis and say can we talk about this now?
But the FBI can unilaterally decide to continue the gag way after the investigation is concluded.
Yeah so the national security letter statute is pretty incredible and like you said the Department of Justice Office of Inspector General issued three pretty amazing reports on the FBI's NSL use and use of another tool called an exigent letter and I really recommend your listeners to read those reports.
They're a little dense but it just serves as a reminder just all of the crazy things that our government was doing over the last decade.
What's an exigent report?
That sounds fun or terrible you know depending on whether you've had your coffee this morning or not.
An exigent letter was sort of like an NSL except even worse.
It was when the FBI called up let's say AT&T and said I need the phone records of this number.
I need to know every phone number that this one number called and at some point in the future I will give you the proper legal process to authorize this.
So it was basically sort of like absolutely no authority at all and sometimes the FBI would follow up with an NSL or a court order or a subpoena or something and sometimes they wouldn't follow up with anything.
Well you know it was a few weeks back I forget which senators it was maybe Dick Durbin and somebody else talked about there's a secret interpretation of the Patriot Act that we don't know about really but we know that according to them it gives them 100 times the power we think it does.
Yeah I think it was Senator Wyden and we've actually issued a FOIA request for that memo and for other information on how the FBI and other intelligence agencies have been interpreting that section of the Patriot Act section 215 and we haven't received anything yet so we'll see.
Well you know I saw the new Kevin Smith movie Red State and there's a scene in there where I guess it's the ATF bosses oh now come on all trials and all that's September 10th.
Now we have the Patriot Act we can do anything we want that's what the executive branch thinks the Patriot Act says.
You know it's funny we've been talking here about a scene from Bridesmaids I don't know if you've seen that movie but it's actually pretty good but there's a scene towards the end where they're trying to find the main character in the film and one of the characters goes to her her cop boyfriend and says we have to find her can you just track her on her cell phone and he you know calls up the station and tracks her on her cell phone and locates her without any kind of a warrant or anything.
Yeah just a friendly favor you know.
Yep right yeah.
Yeah well in fact there's a couple other TV shows like that where basically the whole premise is somebody with unlimited authority and really good principles and great crime solving techniques can use the complete information surveillance state to protect people and solve crimes and make everything okay.
All the time my mom was watching one of those shows I can't remember which one it was but it was the premise of the show is there's a genius behind a panel of computers and it's all up to him to save everybody and he's a cop yeah a cop genius.
That seems like the basis of the show 24.
Well there they gotta you know hang people upside down from their toes.
Well that's true.
Physical water too but all right well um now I wanted to ask you something else too uh that I saw that you wrote about which was uh just it's a local issue but it seemed a little bit ominous something about the Austin police were going to hunt down every open wi-fi connection in town.
Um you know that was not one of my posts.
So I'm sorry I thought it was your archive that I was looking at there.
Yeah you know there's been we've recently updated our website and there's been a little bit of a um some issues with our website so that no that's a bad example when the Electronic Frontier Foundation's website isn't working right now come on.
Yes exactly.
No no okay well all right well I'll let you off the hook for that one but anyway the good news was it was stopped by somebody anyway.
Yeah.
Um all right and now so back to this military thing here uh and and there's I guess violating posse comitatus and the insurrection act I don't know can you be more specific about what laws they're crossing here?
Yeah it could be those um there's also some internal DOD guidelines about um you know when the military can get involved in in U.S. domestic activities um if there is a link to a terrorist organization that's sort of an exception to to some of the rules on when the DOD can get involved or when the military can get involved.
But it is pretty limited.
Yeah I guess just to branch Davidians.
Well although if the Delta Force doesn't exist they can't really shoot people to death can they?
That's true I think that's true for a lot of uh you know espionage groups.
Um well and see the thing is here too I think uh kind of the subtext of your article here even though they have been accountable to you guys in the form of uh you know de-redacting these documents a bit uh there really is no accountability for anyone in the military who violates this thing and and even though maybe we're not all members of a peace group that was targeted because of anti-recruitment efforts in the northwest somewhere uh still the precedent has said if they can get away with doing this to them then they can get away with doing it to us and it's just one more like the like these cops think the Patriot Act means that those days are over and now it's their power's unlimited there's no accountability.
Yeah it's definitely something we worry about here.
All right well you guys are the closest thing we've got so please keep up your efforts we really appreciate it Jennifer.
Well thanks very much.
Everybody that's Jennifer Lynch from the Electronic Frontier Foundation.
