I know that the cynical among you already assume — falsely — that the surveillance state ignores all rules and spies willy nilly on everyone. That is not true. However, they do have a long and scary history of “reinterpreting” or stretching the definitions of things to do widespread surveillance in ways that clearly violate the letter and spirit of the law, even as they try to justify it. For many years now, we’ve written about concerns with Executive Order 12333 — a Reagan-signed Executive Order that enabled much greater surveillance oversees. In the summer of 2014, State Department whistleblower Stephen Napier Tye revealed that everyone focusing on other programs — such as Section 215 under the PATRIOT Act or Section 702 under the FISA Amendments Act — were missing the point: nearly everything was being done under EO 12333, and those other programs were just used to fill in the gaps. Here’s what he said at the time:
Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.
Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.
Tye says that he filed an internal complaint with the State Department’s Inspector General (and with the NSA’s Inspector General), noting that collecting information on Americans via 12333 (again, which has no oversight in Congress) violated the 4th Amendment. Note that nothing appears to have happened because of this. The Privacy and Civil Liberties Oversight Board (PCLOB) targeted 12333 for investigation soon after Tye’s revelations, but no report was ever produced. The PCLOB is effectively dead for now, and with it, everything it had researched on 12333. Notably, the surveillance state supporters in Congress last year tried to kneecap the PCLOB to stop it from investigating 12333 (that effort failed, but with the PCLOB on life support it may not matter).
Just a few months ago, Senator Ron Wyden put out another Wyden Siren, asking the intelligence community to state how many Americans had been targeted under 12333. As per usual, when Wyden sends such a letter, a big part of it is alerting the American public to the fact that the intelligence community is up to no good and trying to hide it. Wyden’s letter certainly suggested that 12333 was being widely abused to spy on Americans, despite its supposed focus on surveillance overseas.
And now, Human Rights Watch has released some documents, obtained via a FOIA request, showing that the Defense Department modified its policy to allow using 12333 to spy on Americans without a warrant, so long as the US government designated them as “homegrown violent extremists” — whatever that means.
Newly released documents reveal a US Defense Department policy that appears to authorize warrantless monitoring of US citizens and green-card holders whom the executive branch regards as “homegrown violent extremists,” Human Rights Watch said today. Separately, the documents also reinforce concerns that the government may be gathering very large amounts of data about US citizens and others without warrants. Both issues relate to a longstanding executive order that is shrouded in secrecy and should be a focus of congressional inquiry.
Now, some people may argue that if we’re talking about “violent extremists” (homegrown or not), we should be surveilling them. And perhaps you’re correct — but it’s hard to see why law enforcement can’t obey the 4th Amendment and get a freaking warrant out in such cases. Human Rights Watch details the policy changes and the problems associated with it here:
One of the documents indicates that pursuant to a 2016 change in procedures concerning Executive Order 12333, the Defense Department may now extend the monitoring of US persons for “counterintelligence” purposes to people the government regards as “HVEs,” which a senior Defense Department official consulted by Human Rights Watch confirmed means “homegrown violent extremists.” The official indicated that the term is “shorthand … used in the counterintelligence community to describe people who may not have a specific connection to a particular foreign terrorist group but are engaged in violent extremist activities, often following engagement with these groups’ propaganda on the Internet or social media, etc.”
The procedures themselves do not directly mention such “homegrown violent extremists,” instead providing in more general terms that the monitoring of US persons for “counterintelligence” purposes may extend to “[a]n individual, organization, or group reasonably believed to be acting for, or in furtherance of, the goals or objectives of an international terrorist or international terrorist organization, for purposes harmful to the national security of the United States.”
In indicating that this category includes “HVEs,” the training document depicts this expansion of the “counterintelligence” collection definition as a “[k]ey” change in the new procedures. The document indicates that the change allows the collection of intelligence on US persons even in the absence of a “specific connection to foreign terrorist(s).” As examples, it alludes to the individuals who carried out mass shootings in San Bernardino, California in 2015, and in Orlando, Florida in 2016.
The Defense Department’s methods and criteria for identifying “homegrown violent extremists” remain unclear, raising fears that the designation could be applied in ways that are arbitrary, inconsistent, or discriminatory. It is also unknown whether US persons who merely exercise their free-expression rights by visiting a controversial website, espousing certain political or religious views, or criticizing the government might be targeted.
The government also has not yet disclosed its legal justification for this policy, especially insofar as it involves any warrantless monitoring of US persons that would normally require a warrant under the Foreign Intelligence Surveillance Act, other statutes, or Fourth Amendment case law. The government should fully disclose the policy, its legal underpinnings, the type(s) of monitoring to which it may lead, and its anticipated and actual application.
As you can see in the released documents, the “counterintelligence exception” has been “expanded” to cover those “homegrown violent extremists” and cites San Bernardino and Orlando as an excuse for this. Note how our surveillance policies apparently changed without any public discussion or debate and via a program that has no direct Congressional oversight. And, on top of that, on an issue that clearly has direct Constitutional issues. It’s no secret that the NSA and others will push and stretch interpretations to increase surveillance activities, but here’s a case where it seems like they are blatantly trying to skate by while ignoring that the 4th Amendment even exists.