Before Obama Left Office, He Gave Domestic Agencies Warrantless Access to NSA Surveillance

By allowing access to NSA data, the FBI and other agencies can look for criminal activity without reasonable suspicion or going to a judge, says The Intercept’s Alex Emmons


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Story Transcript

SHARMINI PERIES: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

One of the last acts of the Obama Administration was the establishment of new rules. Permitting the National Security Agency, or NSA, to share massive amounts of data with 16 other government agencies. Former CIA officer, and NSA contractor, turned whistleblower, Edward Snowden, reacted to the news by tweeting, “As he hands the White House to Trump, Obama just unchained NSA from basic limits on passing raw intercepts to others.”

Joining us now to discuss the background, and the implications, of these rules is journalist Alex Emmons. Alex is a senior reporter covering national security, foreign affairs, human rights and politics at The Intercept.

Prior to joining The Intercept, he worked for Amnesty International, and the ACLU. Alex’s article with The Intercept on this very story is titled, “Obama Opens NSA’s Vast Trove of Warrantless Data to Entire Intelligence Community, Just in Time for Trump.” Thanks for joining us, Alex.

ALEX EMMONS: My pleasure, thanks for having me.

SHARMINI PERIES: Alex, let’s begin by explaining Executive Order 12333, including its brief history and what is it, that Obama actually did, in order to enable the sharing of data within the agencies, that we are now concerned about?

ALEX EMMONS: Sure, so Executive Order 12333 is a Reagan-era order, that outlines the roles of different agencies within the intelligence community, and it’s repeatedly updated by different presidents.

One of the things that the Executive Order allows, is for the NSA to conduct expansive surveillance outside the scope of the U.S. So, within the U.S. there are some congressional laws that regulate the scope of NSA surveillance. Outside the U.S. it’s regulated only by a very expansive Executive Order. So, the vast majority of the information that the NSA collects is under this Executive Order.

And so, we’re talking about, you know, tapping Internet backbones around the world. We’re talking about vacuuming up phone calls of entire countries. We are talking about just massive, massive surveillance programs, hacking into Google and Facebook data centers around the world.

And obviously, there’s a tremendous amount of American’s information that’s contained in this data. So, sharing it with other intelligence agencies, particularly law enforcement agencies, gives those agencies a way of getting around the need to get a warrant.

SHARMINI PERIES: And how does this materialize in our day-to-day lives?

ALEX EMMONS: Well, so, within the United States Federal law enforcement, if they want to spy on Americans, they need to get a warrant, broadly speaking. The NSA does not need to get a warrant to conduct electronic surveillance overseas. So, by allowing agencies like the FBI to sift through the NSA’s data, it allows them to look for criminal activity in Americans without reasonable suspicion, without going to a judge, without getting a warrant.

SHARMINI PERIES: And this is all done under the auspices of protecting us from possible terror attacks, and so forth?

ALEX EMMONS: That’s correct, but we’ve already seen agencies, like the DEA, the Drug Enforcement Agency, use mass surveillance programs for its own ends. We are repeatedly told that the NSA’s activities are primarily for counter-terrorism purposes. But in reality, this is probably going to be used for pursuing very ordinary criminal leads with mass surveillance.

It’s going to be used for anti-drug action, because the data is being shared with the Department of Homeland Security. It could even be used to facilitate deportations. It really is pretty limitless.

SHARMINI PERIES: So, according to you, this Order 12 triple 3, as you put it, enabled them to do this already? Or no, it didn’t allow them to do it, and Obama just expanded the ability to do it? I don’t quite understand.

ALEX EMMONS: So, the Executive Order sets out the roles for different components of the intelligence community. It says CIA and NSA don’t spy on Americans. It says that’s the job for the FBI. But CIA and NSA can spy overseas. What the Obama Administration did is, it essentially said that they could take that information, the information that they get from spying on overseas — that they get without a warrant, and they could share it with agencies that do need a warrant — to spy on Americans. So, it’s sort of an end-round for the Constitutional requirement to get a warrant.

SHARMINI PERIES: All right, and in terms of Snowden, he’s particularly concerned about what?

ALEX EMMONS: Well, so traditionally, in American law there is a separation between surveillance that’s being conducted for a foreign intelligence purpose, and surveillance that’s being conducted on Americans to catch criminals. And the reason that there’s that separation is that there are legal protections for Americans.

You have to go to a judge. You have to get a warrant. You have to present evidence that someone’s a criminal before you can spy on them.

What Snowden is worried about, is that the vast trove of information collected on Americans by the NSA, is now going to be available to those agencies, and they’re not going to need to go to a judge. They’re not going to need to get a warrant. That we’re going to see expanded law enforcement surveillance through the NSA’s trove, through them being able to access that evidence.

SHARMINI PERIES: And don’t we already have evidence that they were doing this anyway?

ALEX EMMONS: Yes. Well, to an extent, yeah, Reuters reported, I think a few years back, that the DEA, for low-level drug crimes, was actually using certain types of mass surveillance, and was actually lying to judges about it. This is an amazing thing.

They called it, “Parallel construction.” But that’s a fancy term for using mass surveillance. Not getting a warrant, and then lying to a judge about it later, so that the defendant can never challenge the constitutionality of the surveillance.

SHARMINI PERIES: So, one would think that collaboration between the various agencies, the FBI, IRS, the NSA, etc. is actually a good thing when it comes to protecting the American public. Particularly when there are so many potential terrorist attacks, and so forth. Why does this pose a problem in terms of our individual citizens’ interests?

ALEX EMMONS: So, you’re touching on a really key point. And that actually, is the justification that the Obama Administration used to issue these new rules — is that since 9/11, we need intelligence sharing between agencies, to make sure that everyone is working together, right? That’s a good thing. But we shouldn’t mess with the legal standards for spying on Americans. We shouldn’t give law enforcement agencies a way to get around the need to go to a judge, and present evidence of criminality before surveillance.

So, you know, sure I want the CIA and the NSA to cooperate, absolutely, I do. But, it’s an entirely different legal question altogether when you’re talking about giving information to the FBI, who normally would need to go to a judge.

SHARMINI PERIES: And in your article, you write, the last minute adoption of such procedures is one of many examples of the Obama Administration making new Executive powers, established by the Bush Administration permanent. On the assumption that the Executive Branch could be trusted to police itself — explain that further. What do you mean by that?

ALEX EMMONS: Absolutely, so in the last couple of months of his administration, rather than trying to wind down his national security powers, President Obama has actually fought to defend them. In December, he argued before a court, again, a Federal court, that courts had no role to play in the oversight of the drone program.

He has expanded the ability of the U.S. government to conduct targeted killings abroad. He’s empowered an agency called JSOC, which conducts those targeted killings. He has defended his ability to hold people in Guantanamo, even as he tries to release people from Guantanamo. He’s gone to court to defend his ability to hold them.

And all of those precedents were unusual things under Bush, and he had a chance to wind them down and say, “No we don’t need them.” But instead, he’s defended those powers, which are passing to Trump.

What we’re talking about today with surveillance and intelligence sharing, is just another example of him passing, really, powers that are rife with potential for abuse. He’s passing those on to a reality TV star.

SHARMINI PERIES: All right, Alex. I thank you so much for joining us today.

ALEX EMMONS: Yeah, my pleasure. Thank you.

SHARMINI PERIES: And thank you for joining us on The Real News Network.