_{Photo: Trever Paglen}

The NSA uses mathematical algorithms applied to vast troves of cell phone metadata—including geolocation and relationship analysis—to select targets for extrajudicial strikes overseas, reports First Look Media. NSA-derived signals intelligence (or SIGINT) is fed to the Joint Special Operations Command (JSOC) and the CIA, which strike targets based on the location of cell phones, not on human intelligence reports. In short, in the vast majority of cases, the drone program targets cell phones, not people, in pre-crime operations based off of computer-derived intelligence. (Am I alone in thinking of the dystopian film Brazil here?)

No domestic statute prevents the US government from using the same technologies to collect bulk metadata in the United States. The Obama administration argues that it should be able to collect and analyze US person metadata without any meaningful limitations or public scrutiny. These revelations therefore not only provide substantial new information about how the US conducts foreign policy overseas. They also provide a glimpse into the future of law enforcement in the United States, unless we act to pass privacy protective statutes barring bulk metadata collection and analysis.

Squarely in the public interest

Today’s story on the drone war is the first substantive report published by Glenn Greenwald, Laura Poitras and Jeremy Scahill for their new First Look Media venture, called The Intercept. Written by Greenwald and Scahill with an assist by longtime Scahill research assistant Ryan Devereaux, the report describes how the NSA’s signals intelligence practically serves as the only basis for US drone and special forces operations in Yemen, Pakistan, Somalia, and elsewhere.

The story is based off of documents leaked to the journalists by former NSA contractor Edward Snowden, as well as information provided by a new, confidential source from the military’s Joint Special Operations Command. JSOC, a once top-secret army answerable directly to the US president, is responsible for the US military’s drone program, which includes operations in countries with which the US is not formally at war. The secretive military wing of the executive branch also conducts ruthless night raids, which are also based off of NSA-derived signals intelligence.

While it’s not news that the NSA provides the CIA and JSOC with electronic surveillance information based off of cell phone metadata for use in drone strike targeting, the Intercept’s story provides us with important new details about what kinds of technologies the spies are using to collect and process this intelligence. The report also shows that, contrary to public officials’ promises, the drone program uses unreliable targeting information, largely derived from algorithmic analysis of large data pools. Contrary to some critics, that information is more useful to Americans than it is to the people the US government calls our enemies, and falls squarely within the public interest.

The backlash against the report began not long after it was published. John Schindler, a professor at the US Naval War College and frequent Greenwald critic, alleges that the revelations published by First Look will “help” The Terrorists.

And how / RT @PrivateSnuffy: Right off the bat, First Look is helping Al Qaeda, Al Shabab, LeT, AFPAK Talibans etc. improve their OPSEC.

— John Schindler (@20committee) February 10, 2014

But as Special Advisor to the UN Special Rapporteur on Extrajudicial Executions and legal scholar Sarah Knuckey pointed out on Twitter this morning, it isn’t news to people in Pakistan that the US government tracks their cell phones, and uses information beaming from them as the basis for conducting drone strikes.

@csoghoian Tracking via sim has been widely known in FATA for years – civilians there often speak of it.

— Sarah Knuckey (@SarahKnuckey) February 10, 2014

Even apart from Knuckey’s uncontroversial assessment, all the information you need to know that Schindler’s claim is without merit is contained in the Scahill/Greenwald piece itself. Their story describes various anti-surveillance strategies and tactics long employed by fighters seeking to evade the US’ omnipotent eyes in the sky. Some of these tactics include changing SIM cards or using multiple phones.

The targets of US drone operations know well that JSOC and the CIA use their cell phones to target them, and long before The Intercept published today’s story, they were making operational adjustments accordingly. Exactly what kinds of technologies the spies use to track their cell phones doesn’t matter at a practical level to the fighters trying to evade US surveillance. Simply knowing their cell phones are tracked and used in targeting is sufficient, and they knew this before First Look Media was a twinkle in Pierre Omidyar’s eye. But this information is extremely important for US citizens to understand.

What do these revelations mean for Americans?

In some ways, the new information is more useful for us here at home, in the United States, than it is for targets of US drone operations overseas. That’s because, while foreigners don’t have rights to vote or to petition the US government for redress, people in the United States—ostensibly a democracy—do possess those rights. We can only make appropriate decisions in a democracy if we are informed about government actions, particularly those that involve killing and spying. The information contained in the Intercept piece is absolutely critical for US persons, for two reasons.

First, because we deserve to know how and why the US government kills in our names, and second, because the technologies marshaled in the terror wars often end up directed at us. We should always have a right to know what our government is doing with our money and in our names overseas, but this is especially true when we are likely to soon find ourselves subject to the tools and practices of the terror wars.

So what did we learn from Scahill and Greenwald today that we need to know in order to hold the government accountable for its war making and domestic surveillance operations?

The report confirms many of our worst fears about the scale and inaccuracy of the US government’s lethal drone and JSOC operations overseas. Instead of being “highly precise” and “targeted”, as we’ve been told, they appear to be anything but. Hundreds of civilians have been killed in these strikes, including a 16 year old, Denver-born US citizen. The public still does not have a full window into the Obama administration’s legal justification for conducting the strikes. This new information suggests it must be very, very permissible and flimsy.

Only two confirmed sources of intelligence are required in order to authorize a lethal strike, and both of those sources can come from signals intelligence. That means the US military and CIA are free bomb cell phones (and whoever unluckily stands in physical proximity to them) without so much as even visual confirmation that the target they think is a Terrorist (again, without any charge, trial, or outside confirmation of wrongdoing) is either the person the government claims they are, or is in possession of the phone being targeted.

We also learned about some of the technologies the NSA uses to select and locate targets:

The NSA geolocation system used by JSOC is known by the code name GILGAMESH. Under the program, a specially constructed device is attached to the drone. As the drone circles, the device locates the SIM card or handset that the military believes is used by the target.

…

In addition to the GILGAMESH system used by JSOC, the CIA uses a similar NSA platform known as SHENANIGANS. The operation – previously undisclosed – utilizes a pod on aircraft that vacuums up massive amounts of data from any wireless routers, computers, smart phones or other electronic devices that are within range.

One top-secret NSA document provided by Snowden is written by a SHENANIGANS operator who documents his March 2012 deployment to Oman, where the CIA has established a drone base. The operator describes how, from almost four miles in the air, he searched for communications devices believed to be used by Al Qaeda in the Arabian Peninsula in neighboring Yemen.The mission was code named VICTORYDANCE.

“The VICTORYDANCE mission was a great experience,” the operator writes. “It was truly a joint interagency effort between CIA and NSA. Flights and targets were coordinated with both CIAers and NSAers. The mission lasted 6 months, during which 43 flights were flown.”

VICTORYDANCE, he adds, “mapped the Wi-Fi fingerprint of nearly every major town in Yemen.”

As we’ve long known, military surveillance technologies almost always migrate back to the domestic space, where they are eagerly applied by law enforcement agencies in the disastrous, decades-long war on drugs, as well as operations against non-violent dissidents. It's likely that the technologies used to wage the drone war overseas are already in use here at home.

Under GILGAMESH, it appears as if the three letter agencies are using IMSI catchers—devices already marketed to and deployed by domestic law enforcement agencies in the United States. These devices trick cell phones into thinking they are cell phone towers, thereby identifying phones within range and even intercepting their data.

We already know that DHS’ Customs, Border Protection agency (CBP) uses Predator drones equipped with similar cell phone sniffing technology. The FBI has been much more secretive about its use of drones, but we can safely assume the Bureau uses these tools above US airspace, in both drones and its substantial fleet of surveillance planes. The US military also flies drones above US airspace. Presumably the technology Scahill and Greenwald describe is already in relatively widespread use among federal agencies in the United States. It’s only a matter of time before police departments start using them, too, if they don't already. The same is true with respect to technologies like those used in the SHENANIGANS program, which sucks up Wi-Fi metadata, likely enabling the NSA to track IP addresses to physical locations.

Domestic statutes and the Fourth Amendment protect US persons from warrantless wiretapping (apart from exemptions under the unconstitutional FISA Amendments Act), but no statute protects us from bulk metadata collection or analysis. Tomorrow, activists from over 4,000 organizations and websites, along with thousands of members of the public, will call on congress to pass the USA Freedom Act to ban bulk data harvesting. If we want to avoid the dystopian scenario Scahill and Greenwald describe overseas coming home to roost, we must act to ensure the bill becomes law.

Scahill and Greenwald probably didn’t tell al Qaeda anything its members didn’t already know. But their journalism is squarely within the public interest in the United States, despite what some government-backed detractors may say. When the US government uses sloppy intelligence to target phones, not people, in lethal operations, it’s a clear sign that lawlessness and an exuberance for killing are guiding US killing operations, not the law or any reasonable judgment of necessity.

Referencing this controversial drone program, President Obama reportedly said he’s very good at killing. The Intercept's report today adds yet more evidence to a mounting pile showing that he's not so good at following the law, either at home or abroad.