Looking through the actual leaked NSA documents themselves this morning (you can browse through them at The Guardian), I read some of "Procedures used by NSA to target non-US persons.” The very last paragraph of the document, screencapped above, was one I found pretty ominous. It’s not really a surprising NSA twist, nor is it new knowledge (the document was posted online on June 20th — it’s been around a couple of weeks), but it is kind of a foreboding look at the potential expansiveness of NSA capabilities.
If, in order to protect against an immediate threat to the national security, NSA determines that it must take action,on a temporary basis, in apparent departure from these procedures and that it is not feasible to obtain a timely modification of these procedures from the Attorney General adn Director of National Intelligence, NSA may take such action and will report that activity promptly to DOJ through the Deputy Assistant Attorney General in the National Security Division with responsibility for intelligence operations and oversight, to the ODNI Office of General Counsel, and to the ODNI Civil Liberties Protection Officer. Under such circumstances, the Government will continue to adhere to all of the statutory limitations set forth in subsection 702(b) of the Act.
The preceding text of the document lays out the procedures and criteria to be used by the NSA in determining the “foreignness” of a subject of surveillance using available intelligence and metadata. As has already been discussed, the NSA definition of “reasonable” belief is 51% confidence in a target’s “foreignness.” The “You keep using that word. I do not think it means what you think it means” reference whenever the NSA says “reasonable” almost makes itself. Even with the available documents, it’s still unclear (to me anyway) by what metrics that 51% is reached (if indeed, there are any set methods established for mathematically tabulating any of that). This is to say that so far the evidence points to a system where analysts get to decide who is and isn’t a target based on metadata, fuzzy math and an inflated sense of national security purpose.
Then, according to the last paragraph, all of the above, which lays out what kinds of information can be used and the process of “post-targeting analysis,” can be rewritten for ad hoc purposes should there be an immediate threat perceived. I understand emergency measures have their place in a national security apparatus, but if the last decade of the Global War on Terror should have taught us anything at all it is that a term left without proper definition is an open door for all sorts of abuse of power. The NSA clearly has a lot of power to decide what an immediate threat might look like, and the checks on that decision happen after the fact, however “promptly.” I find this sinister.
As @zoonpolitikon astutely quoted in a retweet of me on this document: “Sovereign is he who decides on the exception.” The Carl Schmitt quote is a particularly spot-on choice considering the lines that have been drawn from his political philosophies to those of American neoconservatism.