Where’s the “Metadata”?: What Greenwald and Scahill (Don’t) Say about NSA Metadata Collection and Lethal Targeting

There are many, many important revelations about NSA’s involvement in the US drone program in Glenn Greenwald and Jeremy Scahill’s historic debut story for First Look Media. But, does one of the purported revelations – the use of “metadata” to define who can be targeted – actually exist in the report? It certainly would give the story greater media legs if it were about the use of metadata in targeting decisions, and would tap into the sizeable opposition to NSA metadata programs if that were the case. Indeed, Democracy Now! interviewed Greenwald and Scahill this morning and titled the segment, “Death by Metadata.” But that description is inaccurate, and Greenwald’s explanation in the interview (which I discuss below) does not correspond to the content of the published report either.

There are two uses of cell phone data that the report could be about:

1. Identifying who is a terrorist/combatant and poses a threat

This determination could be based on patterns of behavior revealed by the telephony metadata of an individual such as whom the individual phones and texts, how often, and with whom those other individuals communicate.

2. Finding where the target of a strike is located

This determination could be based on location tracking information from a specific phone device to launch a strike against an individual in possession of the phone or SIM card.

As these two categories suggest, the first clearly is about metadata, but the second is not.

More fundamentally, Greenwald and Scahill’s story has a lot to say about the determination in #2, but almost nothing about #1. Indeed, although the word “metadata” appears several times in the story, it is never clearly in the context of #1, nor explained what exactly the “metadata” includes or how it relates to that type of targeting decision.

Admittedly – and importantly – Greenwald is careful in this morning’s Democracy Now! interview to distinguish between these two types of determinations (a clip and transcript of Glenn’s interview is below the fold). He also begins to fill in the blanks about how metadata might be used in the context of category #1 determinations. But I still fail to see where such information is actually contained in the published story.

It is worth noting that a story by NBC news in June 2013 had more to say in one paragraph about the use of such metadata in targeting decisions than the Greenwald and Scahill piece. Here’s what NBC reported:

“Analysts use a variety of intelligence methods and technologies that they say give them reasonable certainty that the “signature” target is a terrorist. Part of the analysis involves crunching data to make connections between the unidentified suspects and other known terrorists and militants. The agency can watch, for example, as an unknown person frequents places, meets individuals, makes phone calls, and sends emails, and then match those against other people linked to the same calls, emails and meetings.

A half dozen former and current U.S. counter-terrorism officials told NBC News that signature strikes do generally kill combatants, but acknowledge that intelligence officials doesn’t always know who those combatants are.”

[As an aside: NBC reproduced much of what Jonathan Landay had already uncovered for McClatchy Newspapers, but not this particular aspect.] And, in February 2013, Gregory McNeal discussed, in a post over at Lawfare, the use of network analysis and pattern of life surveillance in category #1 targeting decisions.

I suppose First Look Media will have more to say about this topic in the future. But, for now, this seems more like a failed media hook than a matter of substance.

Here is the clip of Glenn Greenwald’s interview and the related excerpt from the transcript (with my emphasis added):

AMY GOODMAN: Glenn, you have been publishing many pieces all over the world since you first broke the story of Edward Snowden with the documents that he has released, downloading 1.7 million documents. What makes this story, “The NSA’s Secret Role in the U.S. Assassination Program,” different?

GLENN GREENWALD: Most of the stories that we published thus far have been about the way in which the NSA collects signals intelligence, tries to intercept the electronic communications of hundreds of millions, probably billions, of people around the world, hundreds of millions inside the United States. And that’s what the U.S. government has told the American people is the role of the NSA, is to listen in on the communications of people who are threatening the United States in some manner.

This story has very little to do with those prior stories, in the case—in the sense that this is not a case of the NSA trying to collect people’s communications to find who is plotting with whom or what kinds of plots they’re engaged in. This is the NSA using a form of signals intelligence to, first, determine who should be targeted for assassination based on an analysis of their metadata—has this person called what we think are bad people enough times for us to decide that they should die—and then, secondly, trying to help the CIA and JSOC find those individuals who have been put on a list of, basically, assassination, but not by finding where they are, but by finding where their telephone is—a very obviously unreliable way of trying to kill people that is certain to result in the death of innocent people. And obviously, the source who came forward has said that that’s exactly what has happened. So it’s really an incredibly expanded role that we’re revealing that the NSA engages in, far beyond what traditionally the American people are told about why this agency exists.

The Greenwald and Scahill piece is quite obviously a “must read.” It is highly important most of all for understanding the lack of reliability of SIGINT in the use of lethal force. And, among the significant insights and analysis in the report is the comparison between the standards and procedures that the government uses before a strike versus after a strike to ensure that civilians are not killed. But before reading the report, be prepared for disappointment–or relief–if you think it is about the NSA metadata program in deciding who is a terrorist/combatant for category 1-type determinations. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.