On January 3, 2017, Section 2.3 of Executive Order 12333 – Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the NSA – was signed into effect. According to the New York Times:
“The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone calls and emails that cross network switches abroad, and messages between people abroad that cross domestic network switches.”
Like many, I wondered at the timing of the order and possible ulterior motives on the part of the Obama White House. Why the pressing need to rush this order during the final days of his office? An order which allowed for significant expansion in the sharing of raw intelligence amongst agencies. Was it to enable dissemination of information gathered by those in the Obama Administration amongst intelligence agencies? But if so, why was the order not put into place earlier? Why just weeks before Trump officially assumed the Presidency?
In some ways, what I found particularly curious about this significant order is that it was so overdue. It had been expected to be put into place in early 2016 as reported by the NYT and many other sources. The order was reported as being on “the verge” of being finalized in late February of 2016. Why was the order delayed – and what was changed between that draft and the finalized version that was passed in the last weeks of the Obama Administration? Perhaps there was an innocent reason for the unexpected delays and/or revisions but the timing seemed suspect.
Upon closer examination, it was the restrictions placed within the new order that raised some flags – especially in light of recent events.
By May 2016 it was certain Trump would secure the GOP nomination – and it was seen as probable in late February 2016.
Reports of surveillance and unmasking of members of the Trump Camp are said to go back as much as one year – prior to President Trump securing the GOP nomination.
Section 2.3 of Executive Order 12333 was reported as being in the final stages of completion in late February 2016. Yet the order was not formally issued until January 3, 2017.
Now, examine the following language contained within the order Section 2.3 of Executive Order 12333 – Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the NSA on page 9 of the viewable document and page 6 of the actual document numbering under “General Protections”:
3. (U) Political Process in the United States. [Any IC element that obtains access to raw SIGINT under these Procedures will] Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).
And page 10 of the viewable document and page 7 of the actual document numbering under “Processing Raw SIGINT”:
2. (U) Other targets. Unless authorized under paragraph 1, foreign communications reasonably likely to be to, from, or about a U.S. person or a person located in the United States may not be intentionally selected for the purpose of targeting a U.S. person or a person in the United States, unless approved by:
a. (U) The Attorney General, if all of the following requirements are met:
(i) – Redacted – Blacked Out
(ii) (U) The person is an agent of a foreign power or an officer or employee of a foreign power; and
(iii) (U) The purpose of the selection is to acquire significant foreign intelligence or counterintelligence information.
And page 14 of the viewable document and page 11 of the actual document numbering under “Retention”:
D. (U) Communications between U.S. persons. Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:
1. (U) When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;
And page 14 of the viewable document and page 11 of the actual document numbering under “Dissemination”:
B. (U) Criteria for dissemination of USPI [U.S. Person Information]. Subject to paragraph A and to paragraphs C, D, and E below, an IC element may disseminate USPI derived solely from raw SIGINT covered by these Procedures only if one of the following conditions is met, and if a high-level official as specified in the MOA determines that the recipient has a need for the USPI in the performance of his or her official duties:
1. (U) Consent. The U.S. person has consented to the dissemination of (i) communications to, from, or about him or her, (ii) data related to such communications, or (iii) information about him or her, and has executed an appropriate consent form.
2. (U) Publicly available. The USPI is publicly available information.
3. (U) Understanding foreign intelligence or counterintelligence. The USPI is necessary to understand the foreign intelligence or counterintelligence information or assess its importance.
Note that under the new January 3, 2017 order, inter-agency sharing of information is easier and much broader. Agencies and individuals can ask the NSA for access to specific surveillance simply by claiming the intercepts contain relevant information that is useful to a particular mission. No privacy protection of the raw data occurs. Prior to these changes, the NSA filtered information before sharing intercepted communications with another agency. Under the new rules, sharing of information has been made significantly easier – and the information shared is raw and unfiltered.
But – it appears that there are some significant – and new – protections placed into the January 3, 2017 order covering the specific manner in which information may be used, disseminated, collected – and destroyed. Notably, the first portion I listed; Section 3 – Political Process in the United States under General Protections, specifically prohibits disseminations to the White House for political purposes. Some of the other restrictions listed seem to apply as well.
This language appears to be new – as far as I can tell it did not exist in the older 12333 regulations. Which might explain the lengthy delay in Section 2.3’s formal implementation.
If this language had been implemented in early 2016 when originally scheduled, the requests for unmasking of names may have been significantly less likely to be granted. It’s quite possible the new language could have completely prohibited any unmasking of members of Trump’s Campaign, Transition Team or associates – due to the political nature of those individuals – at least as far as the White House was concerned. At a minimum, the legal bar for the unmasking of politically-related individuals appears to have been moved much higher under the new order.
Prior to the formal signing of Section 2.3 it appears that there existed more latitude within the White House in regards to collection of information on the Trump Campaign. However, once signed into effect, Section 2.3 granted broad latitude in regards to inter-agency sharing of information. By the time the new order was signed, the information was already in the Obama White House’s possession.
It appears to me that these new restrictions – and/or clarifications of older restrictions – contained within the new order, might have limited the ability of Susan Rice or others to act legally in requesting or granting the unmasking of names relating to political opponents if the order had been enacted earlier. The new order, had it been implemented earlier, might have restricted White House access to information regarding the Trump Team in any form. The same would seem to apply to surveillance of those same individuals.
The timing and formal implementation of “Procedures for the Availability or Dissemination of Raw Signals Intelligence Information By The National Security Agency Under Section 2.3 of Executive Order 12333” seems all the more suspicious to me now that I have taken a closer look at its provisions.
And in light of the unmaskings.
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