Judge Warns Proposed Safeguards Could Hamper Surveillance Court
New York Times, 2014-01-15

Washington — A leading Federal District Court judge has waded into the debate over National Security Agency eavesdropping and data collection, warning that several of the major reforms proposed by lawmakers and a presidential review group would have a negative “operational impact” on the Foreign Intelligence Surveillance Court.

In a letter made public on Tuesday, Judge John D. Bates urged Congress and President Obama to not alter Chief Justice John G. Roberts Jr.'s unilateral power to select which judges will sit on the court, or to create a public advocate with “independent authority to intervene at will” in the court’s cases to provide adversarial views to the Justice Department’s briefs.

Judge Bates also objected to the group’s recommendations that so-called national security letters— administrative subpoenas allowing F.B.I. agents to obtain records about communications and financial transactions without judicial involvement — be placed under court oversight, saying the move would “drastically” expand the court’s caseload.

And Judge Bates raised concerns about proposals to require greater public disclosure of the surveillance court’s secret rulings interpreting privacy laws and the Constitution. Releasing opinions with the classified operational details redacted, or freestanding unclassified summaries of its legal interpretations, he wrote, “is likely to promote confusion and misunderstanding.”

Judge Bates is the director of the Administrative Office of the United States Court and a former presiding judge on the surveillance court, and he said that Chief Justice Roberts had designated him to “act as a liaison” for the judiciary on matters related to the surveillance court. He said he had consulted with several other judges, and portrayed his concerns as collective.

The letter was dated Jan. 13 and made public by the office of the chairwoman of the Senate Intelligence Committee, Dianne Feinstein of California, who has been an outspoken skeptic about some of the proposed reforms. President Obama is expected to give a speech on Friday endorsing some of the reforms, rejecting others, and issuing some executive orders to make any changes he supports that do not require separate legislation.

It is highly unusual for judges to weigh in on political and public policy debates involving the executive and legislative branches. Judge Bates said his concerns should be understood as limited to ensuring the smooth operation of the court, and that the comments were not “intended as expressions of support or opposition to particular introduced bills.”

“Our comments focus on the operational impact on the courts from certain proposed changes, but we do not express views on the policy choices that the political branches are considering,” he wrote. “We are hopeful, of course, that any changes will both enhance our national security and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving that goal undoubtedly will require great attention to the details of any adjustments that are undertaken.”

Still, Judge Bates’ comments went beyond worries about making sure that any increase in the court’s workload as a result of changes would be matched by a commensurate increase in the surveillance court’s resources, and came close to taking a stand against making particular changes being discussed in the current debate.



National Security Agency plans major reorganization
By Ellen Nakashima February 2 at 12:21 PM
Washington Post, 2016-02-03

The National Security Agency, the largest electronic spy agency in the world,
is undertaking a major reorganization,
merging its offensive and defensive organizations
in the hope of making them more adept at facing the digital threats of the 21st century,
according to current and former officials.

In place of the Signals Intelligence and Information Assurance directorates,
the organizations that historically have spied on foreign targets
and defended classified networks against spying,
the NSA is creating a Directorate of Operations
that combines the operational elements of each.

“This traditional approach we have where we created these two cylinders of excellence
and then built walls of granite between them
really is not the way for us to do business,”
said agency Director Michael S. Rogers,
hinting at the reorganization — dubbed NSA21 —
that is expected to be publicly rolled out this week.

“We’ve gotta be flat,” he told an audience at the Atlantic Council last month.
“We’ve gotta be agile.”

Some lawmakers who have been briefed on the broad parameters
consider restructuring a smart thing to do
because an increasing amount of intelligence and threat activity
is coursing through global computer networks.

“When it comes to cyber in particular,
the line between collection capabilities and our own vulnerabilities —
between the acquisition of signals intelligence and the assurance of our own information —
is virtually nonexistent,”
said Rep. Adam B. Schiff (Calif.), the ranking Democrat on the House Intelligence Committee.
“What is a vulnerability to be patched at home
is often a potential collection opportunity abroad and vice versa.”


Some advocates for the comparatively small Information Assurance Directorate,
which has about 3,000 people,
fear that its ability to work with industry on cybersecurity issues will be undermined
if it is viewed as part of the much larger “sigint” collection arm,
which has about eight times as many personnel.
The latter spies on overseas targets by hacking into computer networks,
collecting satellite signals and capturing radio waves.


both information assurance and foreign intelligence gathering
rely on similar processes for data analysis and depend on each other.
“But the challenge is they are very much two different cultures,” the official said.
“Unless you’ve worked on both sides of the house, you don’t inherently trust each other.”

The Information Assurance Directorate (IAD) seeks to build relationships with private-sector companies
and help find vulnerabilities in software —
most of which officials say wind up being disclosed.
It issues software guidance and tests the security of systems to help strengthen their defenses.


“You have this kind of clash between the closed environment of the sigint mission and the need of the information assurance team to be out there in the public and be seen as part of the solution,” said a second former official. “I think that’s going to be a hard trick to pull off.”


Former NSA director Michael V. Hayden undertook one of the other major reorganizations,
creating the Signals Intelligence Directorate (SID) in 2000 by merging two directorates —
Operations and Technology.
He said he opted not to fold in the IAD.
“From the outside perspective,” he said, “I needed an organization that was, and was seen to be, committed to defense.”

At the time, he added, IAD needed to be strengthened and adapted to the cyber age.
“Keeping it separate allowed me more direct visibility into that,” he said.
“That said, as the cyber mission matured,
the operational and technological aspects of the SID and IAD missions merged more and more.”

By 2005, as cyber threats were growing,
Hayden decided to create a new organization
that would enable the agency to leverage the intelligence it was getting from spying on overseas networks
to help it defend against intrusions into the government’s classified networks.
The National Threat Operations Center (NTOC) was an experiment in combining offense and defense.
“It was wildly successful,” the first former official said.
[So why didn't the NTOC notice that the OPM computers were a vulnerability?
Because its charter was restricted to classified networks?]

NTOC dispelled the myth, the official said,
that one person cannot operate under two sets of legal authorities — offensive and defensive.
“I can actually sit at my desk and one minute be using sigint data and authorities . . .
and the next minute I could be using IA data and authorities and my mission is not changing,”
the official said.
“You need checks and balances.
You need to know what authority you’re using at any given time, but it’s possible.”


Still, some congressional aides briefed on the broad outlines of the plan have expressed concern about mixing funding for intelligence activities and funding for cybersecurity activities.

One area where the sigint side is ahead of information assurance is in using big data analytic tools to manipulate large volumes of information quickly. “What we want to do is take advantage of that knowledge, to apply it as needed to the IA analysis,” the first former official said.

Under the reorganization plan, there also will be separate directorates of Capabilities and of Research.

“One of the fundamental tenets you’ll see us outline as we try to position NSA for . . . the environment I think we’re going to see five, 10 years from now is a much more integrated approach to doing business,” Rogers said at the Atlantic Council. “I don’t like these stovepipes of SID and IAD. I love the expertise. And I love when we work together. But I want the integration to be at a much lower level, and much more foundational.”

Michael Hayden: Blame Intel Agencies, Not White House, For Getting Iraq Wrong
NPR, 2016-02-22

The former head of the National Security Agency, Gen. Michael Hayden, says U.S. intelligence agencies got it wrong when they concluded Iraq had weapons of mass destruction, and they should take the blame for that, rather than the White House.

"It was our intelligence estimates" that were incorrect, Hayden says in an interview with NPR's Robert Siegel. "We were wrong. It was a clean swing and a miss. It was our fault."

Hayden, a retired Air Force general, ran the the National Security Agency in the run-up to the Iraq War in 2003. He later served as deputy director of National Intelligence and then as director of the CIA.

His 10-year tenure in these top intelligence positions was no ordinary decade. In addition to the Iraq War, there were the Sept. 11 attacks, the expansion of NSA data collection and the investigations into claims of torture by CIA interrogators.

Hayden writes about this period in a new memoir, Playing to the Edge.

Bill Clinton’s neglect left NSA ‘brain dead’ as al Qaeda plotted 9/11 attacks
by Rowan Scarborough
Washington Times, 2016-03-07

President Clinton left the National Security Agency, the nation’s electronic eavesdropper,
in shambles at the very moment al Qaeda was in the final planning stages
of carrying out the Sept. 11, 2001, attacks on New York City and the Pentagon.

Retired Air Force Gen. Michael V. Hayden, the NSA director at the time,
describes the decline in a memoir ...


One day in January 2000, the NSA’s clunky, aging computer network became so overburdened that it crashed. The NSA, he says, was “brain dead.”

The “coma” crisis lasted for several days as new computer hardware was flown into Fort Meade, Maryland, and techies shut down every node in order to reboot the nation’s largest spy machine.

But it was a symptom of something far more serious at the NSA, and for the country.

“The outside world had passed it by in many areas,” Mr. Hayden says in “Playing to the Edge: American Intelligence in the Age of Terror.” “It was going deaf.”


“NSA had experienced years of declining budgets, a shrinking workforce, an aging infrastructure and little new hiring,” the agency’s former director says. “Running hard just to keep up, we had let the network become so tangled that no one really seemed to know how it worked. There was no real wiring diagram anyone could consult.”

Mr. Hayden, who went on to become CIA director under President George W. Bush, is the second top intelligence official to write about the Clinton 1990s as a dark age for American spying.

Mr. Hayden does not directly criticize Mr. Clinton, or any other politician, for the NSA’s fall into disrepair.

But not so George J. Tenet, who was Mr. Clinton’s CIA director. He stayed on in the early Bush administration, during the Sept. 11 attacks, and began rebuilding operations at Langley, Virginia, while jousting with critics who blamed the agency for not penetrating the plot beforehand.

Mr. Tenet’s memoir, “At the Center of the Storm,” stated that the CIA was in “Chapter 11” by the end of the 1990s and the White House refused to help.

“You can’t toss spies at al Qaeda when you don’t have them, especially when you lack the recruiting and training infrastructure to get them and grow them,” he wrote. “The fact is that by the mid- to late 1990s American intelligence was in Chapter 11, and neither Congress nor the executive branch did much about it.”

Of the NSA under Mr. Clinton, Mr. Tenet said: “You don’t simply tell NSA to give you more signals intelligence when their capabilities are crumbling and they are ‘going deaf,’ unable to monitor critical voice communications.”


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