10/14/13 – Rachel Levinson-Waldman – The Scott Horton Show

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Welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our first guest today is Rachel Levinson Waldman.
She is counsel to the Brennan Center's Liberty and National Security Program.
That's the Brennan Center at the New York University School of Law.
And she's got a whole bunch of stuff that needs reviewing here.
First and foremost, what the government does with Americans' data.
Welcome to the show.
How are you doing, Rachel?
Good.
Thanks so much for having me.
Well, you're welcome.
Thank you very much for joining us.
I'm very happy to have you here.
And I admit, I did not budget my time well.
And I had to quit about halfway through this thing this morning before the show.
Understood.
But it was so good that it's one of the very small percentages of things that I'm going to, I swear, finish even after the interview is over.
Because it's really good.
And I really need a thorough understanding of it so I can teach it myself as best I can.
And it's all such a complicated thing.
But anyway, so I want to start the interview with pretty much the same way that the study starts off with, is reviewing a little bit of the history of Nixon era and really J. Edgar Hoover era abuses and what happened, the pushback from that in the 1970s.
And then, of course, how that pushback has become undone, basically, since September 11th.
And the steps that have been taken, where, in other words, where we are now on the slippery slope compared to then and that kind of thing.
Sure.
Yeah.
So do you want me to start out just sort of talking about the history where some of this stuff came from?
Yeah, sure.
Sure.
So to give a little background for your listeners on the report overall, what I talk about in the report is, as you say, what the government is doing with Americans' data.
And what I mean when I say that is specifically, what is the government doing with non-criminal information about Americans that it's gathering?
The idea being that post 9-11, the government has much more authority, was given much more legal authority.
It's interpreted the legal authority that it has fairly broadly to allow it to connect, to allow it to collect a lot of information that's not necessarily connected to suspicion of criminal activity or a very specific national security threat.
And so the way I start off this report, as you say, is looking at the history, kind of how did we get to this point?
And I think it's impossible to understand both what's happening now and the significance of it without understanding the sort of 1960s, 1970s era abuses and then reforms.
So what we learned about from the Church Committee, of course, this is the Senate Committee, Senator Frank Church was the head of it, and this was put into place to find out basically what had J. Edgar Hoover been doing at the FBI, what had the CIA been doing, what had the NSA been doing?
And in 1976, the Church Committee released this amazing, thousands of pages long report saying there had really been significant abuses across the board.
So the FBI had been engaged in targeting women's liberation movements, black student unions, Martin Luther King Jr., a whole variety of domestic kind of political activism and social activism movements.
And they found the same at the CIA and the NSA.
So the CIA also was infiltrating, you know, protest movements, various domestic groups.
The CIA at one point was taking and reading every single foreign telegraph that was leaving from the United States that Americans were sending overseas to see.
The NSA was looking at the content of every single one of these.
And so across these agencies, they were taking in information about thousands of Americans who weren't doing anything wrong, who were just engaged in a variety of activities.
And by and large, these programs for all of them started fairly modestly.
You know, they had fairly modest goals, but this was happening in secret.
It was at a time where there was this incredible fear of communism, and so their activities just kind of grew and grew and grew, and the powers that they'd taken grew and grew and grew.
So the Church Committee released this report.
It's a huge issue.
And in response, there are a variety of protections put into place.
So just before the Church Committee report, Congress passed something called the Privacy Act, which was meant to protect a lot of personal information about Americans and give Americans the right to find out what information about them do federal agencies have.
Then after that, there were restrictions put into place on what the FBI could do domestically.
There was something called the Attorney General's Guidelines that the Attorney General at the time put into place.
And then something that, you know, for better or worse, you and your listeners might be becoming more and more familiar with, the Foreign Intelligence Surveillance Act, which puts much more court oversight, basically, over kind of national security and foreign intelligence work that the NSA and the FBI do.
And so that was what was in place up until 9-11.
Certainly with changes, and we can get into more of the details of that, but there were these basic protections in place, and there was kind of a basic understanding that, generally, First Amendment-protected activity would be protected.
So, you know, speech association, things like that, got heightened protection.
There was this judicial review over a variety of things.
And that people couldn't be targeted generally, didn't have foreign intelligence investigations opened on them or information gathered unless they themselves were an agent of a foreign power, things like that, was fairly restricted.
After 9-11, really, the floodgates opened.
There was a feeling there had been this horrific attack that had been missed.
And so, kind of on all levels, the Patriot Act was passed.
That made changes across the board.
The Foreign Intelligence Surveillance Act was amended in a number of different ways.
And so what you started to see was a lot more information coming in about Americans that wasn't necessarily connected to somebody acting on behalf of a foreign power or somebody engaging in criminal activity.
And so then what we were interested in is what happens next, what happens to all of that information that's been brought in.
Right.
Okay.
Now, so to rewind to the Bush Jr.years here just a minute, how far with Stellar Wind and the rest of what they were doing in secret up until the New York Times finally exposed it in 2005, how much further were they going beyond FISA, beyond the Patriot Act?
Well, this is one of the interesting things.
So with those programs, things like warrantless wiretapping, all of these things that were being undertaken in secret for the four or five years after 9-11, they were certainly going beyond what the law allowed at the time.
I think that was pretty clear that it was in violation of what the law allowed.
That being said, when that information was revealed, as you say, the New York Times article in 2005, the public suddenly starts to learn much more about what the government has been doing in secret.
By and large, kind of the changes, the statutory revisions that were made in response to that were simply to, by and large, allow the government to continue doing the same things, but write it into law.
And so what we see now is, in a lot of ways, even an expansion of the ways in which the law was changed just after 9-11 to allow then what Bush II kind of did to push those laws even more.
Well, then a big part of it that you talk about in the study, too, is the sharing and how it ends up between government departments and agencies, that is, and how that ends up becoming a major loophole in probable cause requirements and that kind of thing, because the different agencies have different levels and then they all share it together in one kind of pool of information.
And this seems to me, especially as the technology gets better and better, the networks between the different government agencies, computer systems get better and better, where you're going to end up having the full intelligence capability of the national government turned against the American people for use in their local and state prosecutions.
And then we'll all be in prison.
Well, and this is a really interesting piece of it.
This isn't something that I get into in detail quite as much in the report, but very much so.
So not just are there a lot of sharing capabilities and really sharing mandates at the federal level.
I mean, this was a big change after 9-11.
I walked through, you know, there are statutes, multiple statutes, executive orders, presidential orders, you name it, ordering the federal agencies to share more and more.
But absolutely, it goes down to the local and state level as well.
And increasingly, there's information that, you know, wouldn't have been gathered originally, but is there and becomes more and more accessible.
Increasingly, there's a lot more sharing between local, state, and federal level in terms of biometric information.
And so a lot of that becomes accessible to law enforcement on all levels.
And of course, all we need is a crisis that hadn't quite happened yet.
But as soon as it does happen, then that'll be the excuse for it, whether it's a really famous missing kid or an illegal immigrant commits a crime or a terrorist does a suicide bombing at a mall somewhere or something that'll be bad enough where, you know, we have all of this.
It seems a waste that we're not turning over all this metadata to local prosecutors who could use it to keep us all safe, for crying out loud.
Right, right.
And I think certainly that's what we've seen after 9-11 is that sort of, you know, crises.
I think crises always create sort of this feeling of emergency.
And in some ways, one of the unique things after 9-11 is that we haven't stepped back much sort of from that feeling and in terms of, you know, how it's being used to collect and share information.
And I think that's right, that if there is another sort of major crisis, that it does create an additional opening.
All right.
And now, you know, I've heard there's been and I've read a bit of coverage about the fusion centers in the past, but not that much.
And I was wondering, you know, it seems like a good opportunity to give the audience a glimpse of what these things really are and how much of a change they are in the form of the police structure in America from the way things were before, not long ago.
Sure.
Yeah, I'd be happy to talk a bit about fusion centers.
So fusion centers are these state and regional centers.
There's sort of no other, no better way to describe them, that were established in the years after 9-11.
It's a little confusing to figure out kind of exactly when the first one was established.
The structures were put in place between about 2004 and 2007.
And the idea was that, you know, sort of before 9-11, there had been all this information coming in from different areas.
But, you know, the term often used, it was stovepiped.
You know, people who needed to know all the information didn't know pieces of it.
And so the idea was that fusion centers would provide a place where really a whole variety of people, of entities could come together to share information.
So you have local, state, and federal law enforcement.
There are these things called joint terrorism task forces, which also bring together law enforcement and intelligence on various levels.
They generally have a place at a fusion center.
Private entities can.
So, you know, private companies, basically, that have their own major security apparatus, they can have a place at a fusion center.
So there are a couple of, I think, really interesting things about fusion centers for our purposes.
One is that there's a huge amount of money that's been poured into fusion centers, largely by the Department of Homeland Security.
As you probably know, there is a scathing report that came out about a year ago from a Senate subcommittee saying, among many other things, that the Department of Homeland Security hadn't tracked that money at all.
There's basically no way of knowing, really, how it had been spent, where the money had gone, if it had produced anything of value.
And the report found a couple of other things that I think are relevant here.
And this has been reported on in other areas as well.
One is that a lot of these fusion centers have grown from being terrorism or counterterrorism focused to what's called, I believe, all risks or all hazards.
So they deal with, you know, there could be a hurricane coming in.
The fusion center, you know, helps combine information about that.
There could be, you know, a large rally that's being planned.
A fusion center helps gather information about that, which all sounds perfectly useful.
But the reason that's happening, frankly, is because there aren't actually that many terrorism risks in the country.
And so the fusion centers basically were being given millions of dollars by the Department of Homeland Security.
And most of them across the country didn't actually have enough counterterrorism work to spend that money on.
And so they expanded to cover lots and lots of other purposes.
The other thing that this subcommittee report found is that, by and large, a lot of the information that was being fed into fusion centers and coming back out was worthless.
It was often worse than worthless.
You know, people weren't exercising good judgment about what they were putting in.
There was information that reflected protected speech.
There was information that was available elsewhere.
And so, you know, there were sort of these sinkholes of money that weren't providing much value.
Right.
Well, and it seems like all of this, especially when you get back to the NSA level of vacuuming up everything, the Snowden revelations, that kind of stuff, you know, I think Bamford puts it this way in his book, The Shadow Factory, that he may be quoting one of them, actually, that they're always trying to surf on this ocean of data rather than drowning.
But they're always drowning in it.
And, you know, it's just like, you know, searching every baby and little old lady at the airport.
You know, it's like it's like that movie Airplane, actually, where they're hassling the nobodies and the real terrorists go through the metal detector with a rocket launcher.
You ever seen that one?
I just like that.
I love Airplane.
Yeah, yeah.
So you got the Boston attack.
He got Fort Hood.
You have Faisal Shahzad in Times Square.
You have all these real attacks, which thankfully have been relatively small compared to what they could have been as horrible as they actually were.
Right.
But all these have happened while they're busy chasing their tail and trapping nobodies and spying on everybody and frisking everybody.
Well, and this is one of the things that we talk about, sort of the notion, right, that there are huge amounts of information coming in.
But then the fact, in a lot of circumstances, that's actually making it harder to pinpoint the key pieces of information.
And you've had people, you know, it's not just the Brennan Center saying this.
You have officials from the CIA, from the Department of Homeland Security, from the Department of Defense going on record and saying, as you said, we are drowning in this information.
It is clogging up the system.
People are afraid not to collect every single thing that's out there.
But it's not actually helpful.
And even if you go back to the 9-11 Commission report, which said, you know, there was a lot of information that was available, but it wasn't being shared.
And often that's used to say, well, you know what the 9-11 Commission was saying, is there are all these dots that weren't being connected.
We have to collect all the dots.
Really what the 9-11 Commission said, and it is a much longer read than my report, although it's fascinating.
Really what it said is there were major alerts that were coming into the government that were being ignored.
It didn't take a whole lot to spot those in the noise because they said things like, you know, somebody is planning to fly a plane into the World Trade Center.
But also that the dots of information that were missed were largely dots that were connected to known terrorists, that were connected to criminal activities, things like passport fraud, visa fraud, things like that.
And so this wasn't, the 9-11 Commission doesn't say, oh, if only the government had sifted through information about innocent Americans, somehow these plots would have emerged.
They said really what needed to have been done was good old-fashioned detective work, starting with leads connected to criminal activity and connected to known terrorists.
Right.
I mean, even Colleen Rowley, who was Time Magazine Person of the Year back in 2002 for blowing the whistle, she said, and this is just from her angle, her part in the story, was that if her bosses had allowed the FBI agents at the Minneapolis office to go ahead and ask the judge for a FISA warrant, which they would have gotten no problem with all the information that they already had on Mosawi and his brother, that they could have, through his papers and through his cell phone stuff, they could have directly traced him to Mohammed Atta and the rest of the leaders of the bad guys in Florida.
That would have been it.
They could have rolled up the 9-11 plot.
And that's not some craziness.
That's from Colleen Rowley.
And there are a lot more, as you said, there are all kinds of alerts coming in from all different directions.
So that's not, it's not that that was the only chance they had.
And in other words, they had all the power in the world to stop that attack if they'd been doing their job.
Yeah, no, I didn't need a new Patriot Act whatsoever.
They didn't need anything more other than competence.
Yeah, no, I think that's right.
That the powers in place, the authorities in place were quite strong at the time.
I think that's right.
Yeah, they make it sound like, oh, geez, you know, the FBI never had the power to look into anybody before.
I guess we need to start doing that.
Right.
And that actually worked, I guess, while people were still afraid they were able to to make that seem legitimate to people.
Very strange.
Right.
And it's one of the very interesting things, I think, about where we are now is that it looks like, you know, given the revelations that have come out, you know, the information that Edward Snowden has disclosed and then what the NSA is increasingly starting to release.
You know, one of the things that I'm that I'm feeling somewhat hopeful about is that we're actually at a moment where the public is really starting to become much more educated about what's been happening.
Certainly, we are learning.
You know, I think it doesn't matter how how steep you are in this.
We are all learning a huge amount from what's come out over the last few months and that people that we may finally have a moment where some of this some of the authorities might be dialed back, at least to some extent, that there's enough kind of public interest and public concern that we may be at a bit of a historical moment.
Yeah.
It seems like the sort of common refrain that, well, we're not really learning anything new.
It's, yeah, compared to our worst fears of what we thought might be going on.
Right.
And then yet what this is, is confirming everything you were afraid that you already knew, but it was just your intuition.
Then now you got the documents at the Guardian.
Right.
Well, you know, it's interesting.
We've been, you know, talking about this with folks and sort of, you know, among the community.
I think one of the points that a couple of people have made, which I think is a really fair point, is that, you know, there's been litigation going on over a variety of these issues for several years in terms of trying to learn more about these policies and especially in terms of trying to challenge some of these laws.
And, you know, by and large, the position of the administration from Bush into Obama has been basically, you know, there's very little that we can disclose.
Nobody is affected by this.
And then now that this information is coming out, they're sort of switching in some ways.
It's sort of a messaging thing to say, oh, well, these powers have been in effect forever.
This is old news.
It's nothing new.
They've been in effect for too long, really, to change them.
And so it's kind of 180 degrees switch.
But in fact, it's significant information that we're learning about.
I think to some extent it confirms what people had suspected from a combination of, you know, great investigative reporting, whistleblowers, things like that, but hadn't quite been able to confirm.
And some of it, I think, truly is beyond really what people in any of these communities suspected what was happening in terms of the ways that some of the laws are being interpreted.
Well, be specific there.
What do you think is the worst, the most shocking thing that people probably did not anticipate?
I think the most shocking thing, and this is getting a little bit into legal weeds, but this is probably overall something that most of your listeners are familiar with.
You know, one of the very first things that we learned about is that the NSA is gathering this whole database of American phone calls.
So, you know, it's what's called metadata.
So they're not wiretapping the phone calls.
They're not listening into the content.
But they're getting information about when a call was made, who it was placed to, how long it lasted.
Just about every single phone call placed domestically and placed from the U.S. going internationally.
The NSA keeps those records for five years.
What they say is that they only search them under fairly limited circumstances.
It's specifically related to terrorism.
We've learned two really important things from this.
One is that, you know, one of the things we've learned from these foreign intelligence surveillance court opinions that have been released is that the restrictions they say that they've put in place, some of them have never worked.
Some issues they didn't reveal to the court for three years.
The court has accused the NSA of lying to the court over and over again.
The Department of Justice had to go to the court to say, FYI, we've just realized the NSA is doing this.
So, you know, one of the things the NSA relies on is we have all of this oversight in place.
And I think what these opinions have revealed is that, by and large, that oversight is pretty weak.
The major legal issue is that the statute, the part of the Patriot Act that ostensibly allows the NSA to gather this information, requires the FBI to make a case to the foreign intelligence court, foreign intelligence surveillance court, that the information that it's getting is relevant to a counterterrorism investigation.
And basically, the court became convinced, yes, every single phone call, information about every single phone call is relevant to a counterterrorism investigation, not because it's all relevant now, and not because most of it is ever going to be relevant, but because the kind of analysis that the NSA does, what they call contact chaining and communities of interest, is reliant on having a huge bank of data.
That's how they run these analyses.
And so the court said, yep, that's fine with us.
We think that's satisfied.
And that interpretation of relevant is beyond, I think, anything that would ever sort of pass the last test under any other circumstances.
And it doesn't exclude any other huge volume of data supposedly being relevant as well.
And so I think, in a lot of ways, that's the most disturbing thing.
You're saying, Rachel, that they're saying that everybody's communication counts as relevant, basically as the control in their various experiments when they're checking their new data off of everything else in the whole world that they already know to look for an anomaly.
So they're taking it for granted that all of this stuff is just normal people living their everyday lives.
But they say to the court, yeah, but we need that so that we'll notice the screwy things.
And the court says, OK, fine.
So you can keep everything on Scott Horton or Rachel's list, too.
Right.
So it's close to that.
It's not quite so much that it's controlled.
The idea is that you have, who knows, you know, say there's a million pieces of information.
There's way, way more than that.
Say there's a million pieces.
And say it turns out that three of those pieces of information are somebody who's connected to al-Qaeda abroad calling me in the States and then me calling somebody else.
But right now, they don't know who that person abroad is.
They don't have any reason to spec me.
But three years down the line, something might come up.
So they want this database of information just to be sitting there to the point where they think, oh, we need to conduct a search.
We need to conduct this analysis.
They have all of these phone calls kind of cached and sitting there waiting to be used.
And of course, one of the concerns is that, you know, what they call metadata, and they keep saying it's not content.
There's nothing to worry about.
There is often so much more, so much sensitive information that you can learn about somebody from this information about who do they call, when do they call them, how long do they spend on the phone, things like that.
It is very vulnerable to abuse.
Yeah.
And, you know, I'm sorry that we're out of time.
Half an hour always goes so fast, and there's still so much to talk about.
But there's a dispute right now.
I don't know if you cover this in your piece.
I'm sorry I didn't get that far.
But is it clear or not yet whether the metadata, the phone metadata there includes your phone's location everywhere you go to?
Because I always wonder whether they follow me to the living room and back, you know, or follow me to the kitchen.
Look, he went to the kitchen again.
Right.
What's he doing in there?
That's a really good question.
This has absolutely been an issue of major debate.
My sense from what we know so far is that this database probably doesn't include location information.
The NSA has said that they did a several-year-long experiment with gathering location information.
They abandoned it in 2011.
But Senator Wyden, who is a senator on the Intelligence Committee, he's basically been sending up smoke signals saying there is more there that they're not telling you.
So I think we know that there's more to learn about the NSA gathering location information.
We just don't quite know which program it's sitting in.
Right.
Yeah, I do know from Bamford's book back when, before any of this Snowden stuff came out, that after they closed down total information awareness under Admiral Poindexter, that they just moved it to the NSA and renamed it Basketball.
And I guess they cut it in thirds and then they made up names for the new things, too.
But it's, oh, you don't like the thing that we're doing?
We'll just make it more secret and then continue.
Right, right.
That's their regular modus operandi or whatever.
All right, anyway, so I'm sorry that we're all out of time because I wanted to ask you about the border searches and the Five Eyes loophole and all of this stuff.
There's all kinds of stuff.
But you're on my list of NSA experts now, so thank you, Rachel.
Appreciate it.
Thank you so much, Scott.
I appreciate it.
Take care.
All right, everybody, that's Rachel Levinson Waldman.
She's counsel to the Brennan Center's Liberty National Security Program at the New York School of Law.
We'll be right back after this.
New York University School of Law, I meant to say.
Yeah.
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