Is the NSA Destroying Records Related to its Collection of Phone Data?

By now everyone will have seen Glenn Greenwald's piece "NSA collecting phone records of millions of Verizon customers daily", the "purported" Foreign Intelligence Surveillance Act court order on which the article is based, and the Obama Administration's talking points in response.

After the shock over the FISA order subsides, the big question becomes: "What has the NSA been doing with this data and any other material it may be obtaining?"

The troubling fact is that the NSA is very likely not retaining all of the information necessary to verify the answers it will give to such questions.  Where's my evidence?

NSA records schedule N1-457-08-001, approved in 2009, governs the fate of "SIGINT Operational Data" such as "intercepted communications" including "voice, data or video and related records" as well as "SIGINT Operational Analysis Information and Records" and other relevant records. I've posted it here (it is also available on the National Archives website here, although intelligence-related schedules posted there have been known to suddenly become "temporarily unavailable").

What does the NSA SIGINT records schedule say?

First, all the "Operational Data" (Item 1) itself is considered "temporary" and the NSA is empowered to destroy such records as soon as it is no longer of "intelligence interest or potentially useful" in NSA's "analytic research."  Making the retention of this data subject only to NSA's interests and uses is remarkable in that it completely ignores the value of these records in providing, among other things, accountability and evidence of the extent of NSA operations.  How this is consistent with, for example, the federal records laws, which require that agencies preserve records "necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities" is less than clear. 44 U.S.C. § 3101 (emphasis added).  Some of this concern is perhaps alleviated by the breadth of the FISA order given that it provides independent evidence that can confirm whether the NSA collected data of a given person (if you were using a relevant Verizon system during a relevant time period, the answer appears to be yes), but such data (and other collected material we may know nothing about) unquestionably has significant value beyond this.

Similarly, "SIGINT Collection Methods" (Item 5) which includes records relating to "the acquisition, processing, analysis, reporting" of "intercepted target communications" and "SIGINT Tasking/Targeting Analysis" (Item 7) which includes "information/data that document the exchange of SIGINT material" and "documentation reflecting the acquisition, receipt, source control, distribution/location" of "SIGINT material" are also considered "temporary" records subject to destruction after 5 years.  This means that decades from now, when historians are finally granted access to freshly declassified NSA records in order to study these events, any records the NSA places in these rather vague and pliable categories will no longer exist.  Even if a Congressional committee were to begin a new investigation today, records in such categories could already be gone prior to a moving 5-year wall of destruction that currently sits somewhere around 2008.

Second, the NSA records schedule provides that several other categories of SIGINT records are "permanent" including "SIGINT Product," which are serialized intelligence reports (Item 2) and "SIGINT Operational Analysis Information and Records" (Item 3), which includes "tasking messages," "dossiers, listings," and "evaluation plans." However, the retention of these "permanent" records are also, like the "temporary" ones above, subject to a significant "EXCEPTION" which notes:

Any data that contains, or could contain, U.S. person information has legal ramifications. There are strict timelines for retention of this data and it must be handled in accordance with USSID SP0018, including Annex A, Appendix 1 [try here]; DoD 5240.1-R [try here]; and any special minimization procedures that govern the retention of that data. For data collected pursuant to the Foreign Intelligence Surveillance Act (FISA) or Protect America Act (PAA), retention may only be done in accordance with the minimization procedures for that data.

Thus even though the value of these records was appraised to be important enough to require permanent retention (as in, you can never destroy it), the most Constitutionally-significant records among them involving "U.S. person information" will nevertheless be destroyed based on limited retention periods.

This highlights a fascinating, distressing conflict between the goal of protecting the privacy rights of individuals by using "minimization procedures" that limit how long the NSA can retain U.S. person data, on the one hand, and the value of protecting our privacy rights by preserving such records to document the extent of NSA domestic operations and to provide long-term accountability (even if just historical accountability), on the other.  Minimization procedures have existed for years and have been blessed by the FISA court and apparently the National Archives. In my view, however, the idea that the NSA could surreptitiously collect, analyze, and utilize data about my communications and then erase its footprints by destroying the records of having done so in the name of protecting my rights seems like a poor form of protection.  The destruction of such documentation could remove the evidence necessary to verify the breadth of NSA collection and how they actually used the data and thereby makes NSA assurances that either data was never collected or was never used for nefarious purposes ultimately a matter of trust (or conspiracy). I personally would prefer that the NSA be required to retain more of these records in order to provide verifiable accountability.

A similar conflict has arisen with some frequency in determining what to do with the records of state security services following the fall of repressive regimes (drawing the comparison only by analogy).  Nations have sometimes decided to destroy such records based on the conclusion that they were inappropriately collected and, as with minimization retention limits, to protect privacy and to prevent their use for any abusive purposes in the future.  Just as often, however, nations have decided to preserve such records for accountability and as evidence and history.  See, e.g., Antonio Gonzalez Quintana, Archival Policies in the Protection of Human Rights (pdf see esp. 51-55).  I don't think these latter considerations have been sufficiently considered in current debates over surveillance, perhaps today would be a good day to start.

[Updated to correct typo]

Update on Possible Declassification of Seized Bin Laden Documents

Last week the House Permanent Select Committee on Intelligence held a hearing called "Worldwide Threats" that included testimony from Director of National Intelligence James Clapper, Director of the Defense Intelligence Agency Lt. Gen. Michael Flynn and others. There was a brief portion in which Representative Devin Nunes asked about the exploitation and status of the documents seized in Bin Laden's compound in Abbottabad.  Clapper indicated that he had recently met with someone from the Combating Terrorism Center at West Point - which had previously released 17 documents from the compound - in order to discuss "what we could do to move out, move ahead on declassifying these captured documents" and that there is "a good reason for us to declassify to the extent that we can" to "make this available more widely for academic research."

A video of the full hearing is available here and the relevant portion is isolated in video here and transcript is below:

REP. DEVIN NUNES: Thank you Mr. Chairman. Director Clapper, I remain concerned about the files from the Abbottabad raid. Specifically, what is it, what has been done with it, where is it and what more is being done with it? Maybe some of this we can get into in closed session as to the specifics, but I'd like for you just to kind of give an assessment from your perspective of the different agencies that fall under you. How would you grade the intelligence community's job that they've done with these files in terms of combing through all of them and doing a thorough job? If you could just kind of give a basic assessment grade of what's been done so far.

DIR. JAMES CLAPPER: Well, I would say at least a B+ or A-. I think to start with, when the, in the immediate aftermath of the raid, we established a 7 by 24 joint task force composed of nine components of the intelligence community to, as soon as we receive the media from the raid, to triage it and it was clearly a community effort and to go through it as quickly as we could to determine if there were any immediate threats or threat plotting. So the executive agent for the documents is the CIA and they continue to look at the material. As well at CENTCOM an organization originally established by the then commander of CENTCOM, General Petraeus, was a center of excellence, which is now part of the Director of Intelligence J2 operation, is going through on a very, very detailed basis, all the documents to, almost in an academic research context to read out any further findings from these documents that might bear on a threat. I recently met with, along with the deputy of NCTC, National Counterterrorism Center - with a representative from the Combating Terrorism Center at the United States Military Academy at West Point, about what we could do to move out, move ahead on declassifying these captured documents, since there was a tranche of about 17 documents totaling 300 pages that were released immediately to this organization. And I do think there is a good call, a good reason for us to declassify to the extent that we can and we don't in any way justify current operations, current intelligence, U.S. intelligence operations or sources or methods, and to make this available more widely for academic research.

REP. DEVIN NUNES: Well, I'd like to make myself available. I'd like to see some of this raw intelligence if possible. I mean, that may answer some of my questions in terms of if somebody could walk me all the way through it, exactly what it is and what you guys have been doing with it. Would that be possible? 

DIR. JAMES CLAPPER: Well, there were at least 400, over 400 intelligence reports that were issued in the initial aftermath, immediately after the raid. I don't know what that number is since then. 

REP. DEVIN NUNES: And I think you know what I'm getting at, right? There's been some rumors in the press and stories in the press that the administration has used these documents to basically, instead of connect the dots that al Qaida is continuing to flourish around the globe, or the greater al Qaida network, it's been used to disconnect the dots, And, I just want to put that to bed because I have great confidence in you and all of the agencies, and think it's our job as members of the oversight committee to make sure that we put these rumors to rest out in the public. 

DIR. JAMES CLAPPER: I haven't, to be candid, I haven't heard that, but I certainly can arrange a briefing for you on how these documents have been managed from the time they were acquired. 

REP. DEVIN NUNES: OK. Well, I appreciate that. 

GEN. MICHAEL FLYNN: If I could, yeah, just because the director mentioned the efforts by Central Command, one of the things that I can assure everybody is that the secondary exploitation, if you will, the sort of the second phase of what we're doing to take this amount, these, this exploited information that is being shared around, certainly in our military channels and I know throughout the intelligence community, for any lessons learned, any things that we can take away from that, not only with Central Command, but with our Africa Command, with our European Command and other certainly military organizations around the world. So the, and I don't have the number off the top of my head, but I know that there have been hundreds of additional reports that have been subsequently published that has allowed us to understand what we have been facing for some time. And I would add that as the, as Director Brennan said earlier, we are a learning organization and we absolutely take the kinds of information that we're getting out of this reporting to learn and to continue to adapt. 

REP. DEVIN NUNES: Well, thank you, General Flynn.

Pascale Siegel on "AQIM's Playbook In Mali"

Pascale Combelles Siegel has a piece called "AQIM's Playbook in Mali" (here) in the new CTC Sentinel (here) from West Point's Combating Terrorism Center.  Siegel focuses on the document located in Mali by the Associated Press earlier this year that, as described by Siegel, was "purportedly part of a confidential letter from Abdelmalek Droukdel (also known as Abu Mus`ab `Abd al-Wadud), the amir of AQIM, to his lieutenants in the Sahara and to the Islamist militant group Ansar Eddine’s leader, Iyad ag Ghaly (also known as Shaykh Abu Fadl)." (This is the same letter I mentioned here that included criticism of the earlier cultural property destruction in Mali.)  Siegel notes:

The letter revealed a deep strategic fracture between AQIM’s leadership and its lieutenants on the ground, as Droukdel saw a military intervention as all but inevitable and therefore wanted to focus the group’s strategy on outliving it. The letter further highlighted major internal dysfunction between AQIM’s leadership and its subordinates in the Sahara. Finally, it showed a deep commitment to success and a worrisome plan for the future.

Siegel closes by stating:

As the French-led military forces retake northern Mali, Droukdel’s eight month old letter should resonate as an ominous warning as it points to a long-term strategic plan to outlive the intervention and sets the stage for a potentially successful return. Clearly, under Droukdel’s leadership, AQIM has no intention of relinquishing northern Mali.

New Operation Iraqi Freedom Captured Records Schedule

On the occasion of the 10th anniversary of the beginning of the 2003 Iraq war, I wanted to quickly note that a new Defense Intelligence Agency records schedule (N1-373-12-01) covering electronic copies of documents captured during Operation Iraqi Freedom and Operation Enduring Freedom was recently made publicly available (here).  As you can see, the schedule was approved back in Jan. 2012, but NARA recently made the redacted version available on its website.  I will have more to say on the significance - or lack of significance - of this schedule on the issue of the original captured documents in a future post.

AP Finds Purported Al-Qaida Letter Left Behind in Timbuktu that Criticizes Cultural Property Destruction

Rukmini Callimachi of AP has a new piece (here) about a document "al-Qaida fighters left behind" in Timbuktu:

Tucked under a pile of papers and trash is a confidential letter, spelling out the terror network's strategy for conquering northern Mali and reflecting internal discord over how to rule the region.

The AP states that the document is "an unprecedented window into the terrorist operation, indicating that al-Qaida predicted the military intervention that would dislodge it in January and recognized its own vulnerability."  The letter was "found by the AP in a building occupied by the Islamists for almost a year" and it "is signed by Abu Musab Abdul Wadud, the nom de guerre of Abdelmalek Droukdel, the senior commander appointed by Osama bin Laden to run al-Qaida's branch in Africa."

In the letter Droukdel "surprisingly argues that his fighters moved too fast and too brutally in applying the Islamic law known as Shariah to northern Mali."  Of particular interest to the issue of destroyed cultural property, the Droukdel letter "criticizes the destruction of Timbuktu's World Heritage-listed shrines," among other things, on the basis that:

Our previous experience proved that applying Shariah this way, without taking the environment into consideration, will lead to people rejecting the religion, and engender hatred toward the mujahedeen, and will consequently lead to the failure of our experiment.