24 September 2014

The holiday season brought the world two federal rulings on the National Security Agency’s collection of data on every single person in the country. The cases were brought in two different federal districts before two different federal judges. Federal District Judge Leon, of the District of Columbia, called the NSA’s practices “Orwellian,” and “likely unconstitutional” but declined to issue an injunction prior to a full trial.

Federal District Judge Pauley, of the Southern District of New York, upheld the NSA’s bulk metadata collection. In both cases the NSA relied on testimony from Teresa H. Shea, the Director of the Signals Intelligence Directorate of the NSA.


The Free Press could not obtain Shea’s testimony in the case where the NSA’s metadata collection was termed “likely unconstitutional.” Shea’s declaration to the Federal Court in the Southern District of Manhattan, where Judge Pauley found in favor of the NSA, is readily available. Her sworn statement to that court is in direct contradiction to facts presented over the past months by the media. Perhaps, in homage to her boss Director of National Intelligence James Clapper, she gave the “least untruthful answer,” as he did by his own admission before Congress.


Judge Leon ruled against the NSA but failed to grant an injunction. While the government appeals, the Judge found at least one of the NSA’s claims not credible. Leon devoted a significant amount of ink to his failure to find credibility. The NSA, presumably through Shea, claimed that when harvesting metadata it only goes three hops – essentially degrees of separation – from an identified target, and thus would target no more than 300 people in any given search. Leon noted that if a pizzeria in New York was amongst the numbers in the first degree of separation, thousands, if not millions of numbers would be targeted. Shea’s declaration to Judge Pauley uses similar minimizing language.


Shea’s declaration contains outright lies including the often repeated claim that content is not collected or stored. It is known from released documents and press reports that biometric data is intercepted from video and voice chats during online gaming sessions in bulk. Chat logs are collected in bulk from games as well. The NSA collects address books directly from web mail services.

It also operates a massive data center in the Utah desert to store signals for at least five years. The NSA is known to have hijacked the global network backbone in multiple places, allowing them to collect data without a court order to providers. The NSA has also engineered back doors into software while it is still in production to facilitate the capture of both content and metadata. Judge Pauley seems to have ignored this and Shea seems to have forgotten the years of work and billions of dollars in expense that make this possible.


Perhaps the most obvious lie in Shea’s sworn testimony is the claim that the NSA does not share data it has collected with other agencies unless there is a “valid counterterrorism identifier.” Yet it is in fact old news that the NSA routinely shares its intelligence products with both the DEA and the IRS, neither of which is an agency engaged in counterterrorist operations.


Judge Pauley, a Clinton appointee, was able to ignore great volumes of publicly known truths to find in favor of the NSA and against the ACLU. Within hours, his Wikipedia page had been given anonymous cosmetic updates that branded him a traitor to the nation and our constitution. Judge Leon, appointed by George W Bush on September 10, 2001, all but screamed about living in post-constitutional America and failed to issue an injunction against the actual spying practices by the NSA pending trial.

Life goes on in post-constitutional America. Our judiciary seems now poised to offer the people little more than rhetorical relief. The intelligence community need to little more than lie to the judiciary, as it lies to Congress and these lies, however incredible, are accepted as gospel truth by the powers that benefit from them.