Yesterday I brought the story of John Napier Tye to Dailykos but it scrolled off rather quickly so I thought I would have another go, adding this bonus article from the Atlantic on the story. But first, a quick recap:
In the July 18th Edition of the Washington Post John Napier Tye, the State Departments former Section Chief on Internet Freedom in the departments Bureau of Human Rights and Labor posted an important op-ed concerned that the Reagan era executive order poses a direct risk to our democracy. While this is not surprising to those of us who have followed the NSA's success at narrowing the discussion down to various Patriot Act sections, it is important that someone of such credentials is bringing the discussion to the public.From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.
Tye explains the differences between section 215 and EO 12333 and hints at how much information is captured:
Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.Using careful wording Tye careful treads the line between revealing too much but pointing people in the right direction at the same time.
“Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity.
“Incidental collection” might need its own power plant.
All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper.I was quite pleased this morning to google Tye's name and see this fresh story from The Atlantic come up:
New Surveillance Whistleblower: The NSA Violates the ConstitutionWhile EO 12333 is not news to those who spend time around this site or follow Marcy Wheeler, it is a BFD that someone of such credentials is speaking out. With no ties to Russia, Snowden or Greenwald he will not be as easy a target for smearing/deflecting. From Tye:
John Napier Tye is speaking out to warn Americans about illegal spying. The former State Department official, who served in the Obama administration from 2011 to 2014, declared Friday that ongoing NSA surveillance abuses are taking place under the auspices of Executive Order 12333, which came into being in 1981, before the era of digital communications, but is being used to collect them promiscuously. Nye alleges that the Obama administration has been violating the Constitution with scant oversight from Congress or the judiciary.
"The order as used today threatens our democracy," he wrote in The Washington Post. "I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?"
When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.And then back to that Atlantic article discussing this statement:
This act of conscience illuminates yet another path a surveillance whistleblower can take. If more current and former federal officials believe the NSA is in flagrant violation of the Fourth Amendment, they should consider declaring themselves too. "Based in part on classified facts that I am prohibited by law from publishing," Tye wrote, "I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215." I wonder what he saw but isn't revealing.
“The way the government has treated whistleblowers like Thomas Drake, who went through every possible internal channel and still got prosecuted for espionage, I certainly worry that the government may retaliate, probably by never hiring Mr. Tye or giving him a security clearance again,” Radack tells U.S. News.
Tye, however, isn’t concerned.
“I don’t think there should be any retribution in this case because I haven’t broken any laws,” he says. “I took an oath to protect and defend the Constitution of the United States and this is part of that effort. I haven’t disclosed classified information to anyone who was not authorized to receive it, and I followed the law the whole way through.”
He also believes many executive branch employees agree with him that the order allows for violations of Americans’ Fourth Amendment rights and expects President Barack Obama to come around after reviewing the issue.
“I’m not worried about retribution because I think the government will do the right thing on this,” he says. “I think that the president, once he understands the scale of constitutional problems from 12333, will agree that we need a change…He could do it with the stroke of his pen by amending the executive order.”