The CIA recently declassified parts of a letter written by two U.S. senators that revealed the existence of a previously unknown bulk spying program that collects and stores Americans’ data. The letter, written by Senators Ron Wyden and Martin Heinrich, calls for the CIA to reveal the details of the program. It was sent to Director of National Intelligence Avril Haines in April 2021. Much of the letter remains classified, and neither the senators nor the CIA have provided any specifics about what the underlying spying program entails.
“Among the many details the public deserves to know are the nature of the CIA’s relationship with its sources and the legal framework for the collection; the kinds of records collected [redacted] the amount of Americans’ records maintained; and the rules governing the use, storage, dissemination, and queries (including US person queries) of the records,” the senators wrote. The mention of the CIA’s “relationship with its sources” is likely a reference to the telecommunication companies providing the data, a reminder of the symbiotic roles private companies play in national security surveillance.
The existence of the CIA’s program was first disclosed to members of the Senate Intelligence Committee in March 2021, according to Wyden and Heinrich. They became aware of the bulk collection from a report issued by the Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive branch agency whose members have access to classified information. That review, known as “Deep Dive II,” remains classified, but the CIA partially declassified a set of recommendations issued by the board. That document revealed that when CIA analysts enter a search term, or query, into the program, a “pop-up box will appear to remind the analysts” that they need to provide a foreign intelligence justification for the search. Analysts are not required to document that justification; the oversight board recommended requiring it.
Although Wyden and Heinrich, who both sit on the Senate Intelligence Committee, said they were only informed about the bulk spying program in March 2021, a CIA official told The New York Times that Congress had already been told about the data collection. That official suggested that the new information in Deep Dive II had to do with the “repository and analysis tools for storing and querying that data after its collection.”
If the CIA is lying to Congress, or misleading members through wordplay and hiding behind technicalities, it would not be the first time in recent memory an intelligence official had done so. In 2013, then-Director of National Intelligence James Clapper lied to Senator Wyden in an open hearing about bulk surveillance of U.S. persons. Wyden asked if the National Security Agency (NSA) collected “any type of data at all on millions or hundreds of millions of Americans.” Clapper responded “no,” later adding “not wittingly.”
Clapper’s obfuscation was a key motivation for Edward Snowden, then an NSA contractor, to leak documents to journalists exposing multiple mass surveillance programs. Following the Snowden disclosures, Clapper referred to his own earlier testimony as “clearly erroneous.”
There have been other episodes of tension, in some cases outright hostility, between intelligence agencies and their congressional watchdogs. At the end of Obama’s second term in office, the Senate Intelligence Committee assembled the most exhaustive accounting to date of the CIA’s role in the post-9/11 rendition, detention and interrogation program. Commonly referred to as “The Torture Report,” the document was designed to expose the CIA’s lies about the efficacy and necessity of torture. In the days immediately before the report was to be released, Sen. Dianne Feinstein, whose office was the primary author of the report, revealed that the CIA had spied on her staff. Then-CIA Director John Brennan initially denied the allegations, but later admitted the CIA had inappropriately surveilled Senate staffers while they were using a CIA network to conduct their research. The report remains classified, other than an executive summary that was released to the public with heavy redactions.
Although little is known about the newly disclosed CIA bulk spying program, Wyden and Heinrich wrote in their letter that its legal foundation is Executive Order (EO) 12333. That order, signed by President Ronald Reagan in 1981, serves as the authority that governs most covert foreign intelligence activities carried out by the U.S. government. It purportedly bans the assassinations and covert action “intended to influence United States political processes, public opinion, policies, or media,” but the order gives wide latitude for overseas physical and electronic surveillance. Executive orders are issued by presidents, and by definition have not been passed by Congress. Although the intelligence committees in both chambers are supposed to have broad oversight over the CIA, NSA and the rest of the intelligence community, programs and activities governed by EO 12333 generally have more autonomy than those controlled by statutes, such as the Foreign Intelligence Surveillance Act (FISA). The bulk spying may have something to do with collecting “financial data” as it relates to ISIS, as suggested by a different, partially declassified PCLOB report. If it does, it would suggest a familiar pattern in the “war on terror,” namely, intelligence agencies claiming that countering the threat of terrorism requires mass surveillance with no congressional or judicial oversight.
Elizabeth Goitein, codirector of the Liberty and National Security Program at the Brennan Center for Justice, reacted to the newly disclosed surveillance program by summarizing the distinctions between the two types of legal authorities. “You might be asking, didn’t Congress end bulk collection? The short answer is no,” she tweeted. “In 2015, Congress passed a law aimed at prohibiting bulk collection when the government is acting under [FISA], but FISA only applies to certain types of surveillance that target U.S. persons or happen inside the United States. When the collection happens overseas or falls into one of FISA’s statutory gaps, it takes place under Executive Order (EO) 12333.”
Goitein added that “most foreign intelligence surveillance actually takes place under EO 12333, not FISA. That means it is subject to no statutory constraints whatsoever, and there is no judicial review or oversight.” When it comes to what prevents the CIA from using this bulk surveillance repository to search for U.S. persons’ data, Goitein writes, “Let’s be honest: nothing.”
The Snowden disclosures partially reveal the nearly limitless authority that intelligence agencies have claimed under EO 12333. The NSA program MYSTIC, revealed based on Snowden’s leaked documents, was “capable of recording ‘100 percent’ of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place,” The Washington Post reported in 2014. The Intercept reported two months later that a MYSTIC sub-program called SOMALGET had targeted the Bahamas, without the country’s government’s knowledge or approval. Both MYSTIC and SOMALGET operated under EO 12333.
Despite the well-documented abuses the CIA carried out under the auspices of the war on terror, and during the Cold War before that, there is very little political will at the moment to abolish the agency. However, the idea has been broached over the decades. In a 1974 speech, then-Senate candidate Bernie Sanders called the CIA “a dangerous institution that has got to go.” In 1991 and 1995, Sen. Daniel Patrick Moynihan introduced legislation to abolish the CIA and move some of its authorities to the State Department. Presidents Truman and Kennedy each expressed their reservations about the CIA’s authority, as did Secretary of State Dean Acheson.
The recent disclosures from Senators Wyden and Heinrich are a reminder that the CIA sees itself as an institution beyond the reach and control of Congress, and U.S. and international law. The agency can’t be trusted, and has repeatedly shown that it can’t be reformed. It may be well past time to resume questioning whether it should exist at all.
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