James Clapper, the director of national intelligence, has been harshly criticized for having misled Congress earlier this year about the scope of the National Security Agency's surveillance activities. The criticism is entirely justified.
An equally insidious threat to the integrity of our national debate, however, comes not from officials' outright lies but from the language they use to tell the truth. When it comes to discussing government surveillance, U.S. intelligence officials have been using a vocabulary of misdirection - a language that allows them to say one thing while meaning quite another. The assignment of unconventional meanings to conventional words allows officials to imply that the NSA's activities are narrow and closely supervised, though neither of those things is true.
What follows is a lexicon for decoding the true meaning of what NSA officials say.
Every time we pick up the phone, the NSA makes a note of whom we spoke to, when we spoke to him, and for how long - and it's been doing this for seven years. After the call-tracking program was exposed, few people thought twice about attaching the label "surveillance" to it. Government officials, though, have rejected the term, pointing out that this particular program doesn't involve the NSA actually listening to phone calls - just keeping track of them. Their crabbed definition of "surveillance" allows them to claim that the NSA isn't engaged in surveillance even when it quite plainly is.
If an intelligence official says that the NSA isn't "collecting" a certain kind of information, what has he actually said? Not very much, it turns out. One of the NSA's foundational documents states that "collection" occurs not when the government acquires information but when the government "selects" or "tasks" that information for "subsequent processing." Thus it becomes possible for the government to acquire great reams of information while denying that it is "collecting" anything at all.
The NSA's call-tracking program is ostensibly based on the Patriot Act's Section 215, a provision that allows the government to compel businesses to disclose records that are "relevant" to authorized foreign intelligence investigations. The theory, it seems, is that everybody's phone records are relevant today because anybody's phone records might become relevant in the future. This stretches the concept of "relevance" far beyond the breaking point. Even the legislator who wrote Section 215 has rejected the government's theory. If "relevance" is given such a broad compass, what room is left for "irrelevance"? Targeted.
The call-tracking program is only one of the NSA's surveillance efforts. Another is what's been branded PRISM, a program that involves the acquisition of the contents of phone calls, emails and other electronic communications. Americans need not worry about the program, the government says, because the NSA's surveillance activities are "targeted" not at Americans but at foreigners outside the United States. No one should be reassured by this. The government's foreign targets aren't necessarily criminals or terrorists - they may be journalists, lawyers, academics, or human rights advocates. And even if one is indifferent to the NSA's invasion of foreigners' privacy, the surveillance of those foreigners involves the acquisition of Americans' communications with those foreigners. The spying may be "targeted" at foreigners, but it vacuums up thousands of Americans' phone calls and emails.
Because the government's surveillance targets are foreigners outside the United States, intelligence officials describe the acquisition of Americans' communications as "incidental." But the truth is that the statute behind PRISM - the FISA Amendments Act of 2008 - was intended to let the government conduct warrantless surveillance of these very communications.
In the debate that preceded passage of the law, intelligence officials told Congress that it was Americans' communications that were of most interest to them. Indeed, when some legislators introduced bills that would have barred access to these communications without a warrant, President Bush said he would veto them. (One of those bills, incidentally, was introduced by then-Sen. Barack Obama.) Inadvertent.
The PRISM program sweeps up Americans' purely domestic communications, too. Officials have said that the collection of domestic communications is "inadvertent," but PRISM's very design makes the collection of Americans' domestic communications perfectly predictable. This is in part because the NSA presumes that its surveillance targets are foreigners outside the United States unless it has specific information to the contrary. In 2009, The New York Times reported that the NSA's collection of purely domestic communications under the 2008 statute had been "significant and systemic."
What does the NSA do with communications that are acquired "incidentally" or "inadvertently"? As intelligence officials have told the courts and Congress, so-called "minimization" procedures limit the NSA's retention and use of information about American citizens and permanent residents. Here again, though, the terminology is grossly misleading. The 2008 statute gives the NSA broad latitude to retain Americans' communications, share them with other agencies, and even share them with foreign governments. The NSA's own documents suggest that the agency retains Americans' communications indefinitely if they include "foreign intelligence information," a term defined so broadly that it encompasses any conversation relating to foreign affairs.
Even communications that don't include foreign intelligence information are retained for as long as five years.
When James Clapper was asked at a March Senate hearing whether the NSA was collecting information about millions of Americans, he answered, "No," and then, after a pause, "not wittingly." As Clapper has now conceded, the correct answer was simply "yes."
Officials who describe the NSA's activities using strategically idiosyncratic terminology presumably believe that they are telling the truth. In a certain formal sense, they usually are - though Clapper's statement is a glaring exception. It shouldn't need to be said, though, that their duties as public officials go beyond the avoidance of perjury charges. They have an obligation to ensure that the courts, Congress and the public fully understand the policies that they are being asked to accept. They could start by using the same dictionary the rest of us do.
Jaffer is deputy legal director at the American Civil Liberties Union.Kaufman is a fellow with the American Civil Liberties Union's National Security Project.