ODNI’s Civil Liberties Protection Officer Sets Forth Defense of 12333 Surveillance

Earlier this month, New York Times reporter Charlie Savage covered public criticisms made by John Napier Tye, a departing State Department official, of the NSA’s collection of information on Americans overseas. As Savage noted, Tye has filed a formal whistleblowing complaint arguing that NSA collection abroad violated the Fourth Amendment, and Tye has also reached out to members of Congress regarding his concerns. Tye’s focus is on Executive Order 12333, and Patrick Toomey, an ACLU National Security Project staff attorney, argued that the issues Tye highlighted raised serious questions about the use in criminal cases of evidence collected under 12333.

Yesterday, Alexander W. Joel, the Office of the Director of National Intelligence’s civil liberties protection officer, responded in Politico Magazine to Tye’s remarks. Joel’s response is worth reading in full. Notably, he praises Tye for raising his concerns through “the processes established for that purpose”—seeming to draw a contrast from disclosures through leaks. Joel also argues that minimization procedures in place for Executive Order 12333 do provide sufficient safeguards for personal information, that there is already “extensive and multi-layered” oversight within the executive branch, and that the Obama Administration has in fact made efforts to reform 12333 (via Presidential Policy Directive 28).

Whether or not readers find the response convincing, it gives insight into the government’s position on this developing story.

A key excerpt from Joel’s response is below:

EO 12333 requires procedures to minimize how an agency collects, retains or disseminates U.S. person information. These procedures must be approved by the attorney general, providing an important additional check. The National Security Agency’s procedures are reflected in documents such as United States Signals Intelligence Directive SP0018 (USSID 18), issued in 1993 and updated in 2011. These procedures generally provide that communications may not be retained for more than five years. In addition, NSA personnel may not use U.S. person “selection terms” (such as names, phone numbers or email addresses) to retrieve communications from its collection under EO 12333 without a finding by the attorney general that the U.S. person is an agent of a foreign power (or in other similarly narrow circumstances). And even if the NSA determines that information about an American constitutes foreign intelligence, it routinely uses a generic label like “U.S. Person 1” in intelligence reporting to safeguard the person’s identity. The underlying identity may be provided only in a very limited set of circumstances, such as if it’s necessary to understand the particular foreign intelligence being conveyed.

 

About the Author(s)

Eric Messinger

Former Assistant Managing Editor of Just Security Follow him on Twitter (@egmessinger).