More NSA ‘revelations’:
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
The government’s collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.’s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic “switches,” according to officials familiar with the matter.
Look- I can not be the only person who ever read the Puzzle Palace in the 90’s. I am not saying I like this, but the idea that this is ‘news’ is, well, silly. I just sort of assumed this was the sort of thing the NSA did, and was why it was there. I thought everyone knew that the NSA engaged in widespread data mining of this type.
Everyone reading this has heard the stories (urban legends? rumors?) that if you say certain ‘code words’ on the phone like ‘bomb,’ or ‘White House,’ it would be detected by some super secret program at NSA. It has been the grist for dozens of movies. I remember a 60 Minutes piece several years back when they talked about Echelon and all those b ig dome/satellite things in Europe. All my geek friends would talk about the computing power at NSA, and whether or not they actually could break PGP 64 bit encryption and stuff like that (again, I may be off on the technical details, but I remember conversations about this).
I guess my point is that pretending this is a surprise, or anything new, seems to me to be a touch disingenuous. Again, this is an issue that I have not followed closely, so if this has been taken to new levels or something, fine, fill me in. But everyone I know is aware this has been going on for a while, and this really is not surprising or shocking to me, and I certainly do not, at this point, think this Administration is doing anything different from previous administrations. In fact, I thought one of the chief complaints about NSA was that it was a ‘secret’ government to itself, regardless of who the elected government was. Again, if I am wrong, let me know.
I should probably also note that unless I am wrong about the scope of this NSA operation, and people are not freaking out over something that is widely known, people are REALLY going to freak the F–K out when they finally learn what domestic data mining companies (like, say Choicepoint) know about you and your behaviors and activities.
Again, if I am wrong about all this, let me know.
*** Update ***
Interesting piece by William Arkin here:
Massive amounts of collected data — actual intercepts of phone calls, e-mails, etc. — together with “transaction” data — travel or credit card records or telephone or Internet service provider logs — are mixed through a mind-boggling array of government and private sector software programs to look for potential matches.
In discussing the “Able Danger” program, I previously described how information targeters began data mining in the 1990’s to discover new patterns of indicators to identify events of interest when they could not be directly observed. The theory is that data mining techniques applied to the intelligence take, combined with massive “transaction” databases, can uncover clandestine relationships or activities.
In Section B above, when the law says “the search does not use personal identifiers of a specific individual or does not utilize inputs that appear on their face to identify or be associated with a specified individual to acquire information,” I take it to mean the new computer-based data mining isn’t looking for an individual per se, it is looking at information about all individuals (at least all who make international telephone calls or send e-mails overseas or travel to foreign countries according to the government) to select individuals who may be worthy of a closer look.
In other words, with the digitization of everything and new computer and software capabilities, the government couldn’t go to the Court or the Congress and say, “hey, we’d like to monitor everyone on a fishing expedition to find the next Mohamed Atta.”
It’s one conceivable explanation. If this in fact is what the NSA has been doing since 9/11, perhaps Congress should figure out: one, whether it’s legal; and two, how it can be done consistent with the Privacy Act and the Fourth Amendment.
More relevant stuff as I find it.
*** Update ***
Seth from The World According to Pooh emails:
Nuance certainly plays well, huh? [Ed- No kidding.] Anyway, I thought it might help you out if I could crystallize what this whole NSA thing boils down to. By way of preface, I am a lawyer, and have done a fair bit of reading on the subject, but it is far from certain how much of this would play out. Though some of the claims advanced by the admin, frankly suck,
The “my lawyer said it was ok” argument carries no weight with me because how it works is, you ask your lawyer “how do I get away with this” and he makes the best argument, Of course they can say “I asked for an objective appraisal,” to which I respond “did Gonzales and Miers get where they are by NOT telling the boss what he wants to hear? (not a fault limited to W’s admin, natch) Conversely, ask the folks in the Civil Rights Division how well ‘objective’ analysis is received.
Anyway, the administration has an excellent argument that it can conduct wireless surveillance of foreign operatives. In fact, that’s a lock under FISA. Under Hamdi (which I don’t find compelling, but it’s not ridiculous, and is also the Law), warrantless surveillance on ‘terrorist operatives’ is probably legal also. Warrantless surveillance on U.S. citizens NOT terrorist operatives is still in fact a felony. (The less said about the argument that AUMF repeals FISA, the better. It’s that bad on Constitutional, legal and prudential grounds.)
So, we have an issue here in that if the President is indeed spying solely on those who are ‘bad’ then he has no problem. However, without anything ensuring that those people are in fact arguably ‘bad’, there are no meaningful assurances that he isn’t spying on you or me (and since the program is ‘secret’ and we are not likely to be criminally prosecuted, finding out we are being snooped is going to be a bitch.)
This leads to an intractable problem – the President has plenary power to spy on actual terrorists, but no power to spy on anyone else (absent PC). That plenary power means that it is not subject to review. But ensuring he does not EXCEED that power necessarily subjects the power to review. If the President truly wishes to push his power to the edge on this, it creates a Constitutional controversy not seen since probably reconstruction (or maybe the New Deal rise of the administrative state). Now that may not seem like a big deal to the layperson, but it scares the crap out of me, and is certainly not something that should happen behind closed doors.
Slide
It’ll be my pleasure. The fact that the NSA has the ability to do what is claimed is not news. The fact that they are doing it on domestic communications is. You mention urban legends and thats exactly what they are, there has been NO credible proof that I have seen that previous administrations have done this sort of thing with DOMESTIC communications. Purely international yes, domestic no. This is not a hard concept here John, we as Americans have certain rights guaranteed under the Fourth Amendment. To think that the government should be able to monitor our every phone call, our every email WITHOUT CAUSE, WITHOUT WARRANT, WITHOUT OVERSIGHT is chilling to say the least.
Dozens of NSA people went to the NYT’s apparently because they were so upset with what is going on. Now if they have been doing it all along why would they be so upset now, after 911? Does that make ANY sense to you John? Until someone can show me that any previous administration has done this I’ll put this ridiculous and bogus argument in the category of another bush apologist just making excuses for the criminal activity of their president.
Paddy O'Shea
Anybody who believed Bush’s baldfaced lies that his NSA snooping only involved a small number of folks with overseas connections actively engaged in communicating with Al Qaeda deserve to have their gullible asses kicked down the street.
This was illegal wholesale domestic spying carried out by a criminal regime. They tapped into everything.
That Bush’s cock and bull story is falling apart so quickly should hardly be a surprise to anyone. Most of his bullshit explanations usually do. And by the time the Senate investigation into this president’s Mussolini Moment kicks off none of what he has said on this matter in the last 10 days will be in any way operative.
Who knows, maybe he’ll come up with a more plausible defense. Like insanity.
But none of this should bother his devout apologists. They’ll just switch to some new malarkey and pretend that all the crap they’ve been spewing these last few days never even existed. Just like the liar they so obviously love.
DougJ
John, you’re embarrassing yourself. That’s my last comment on this issue.
John Cole
Slide, you unrepentant dick, ifyou call me a Bush apologist one more time, I ban you forever. Without a second thought.
I stated where I was coming from, repeatedly, and stated, ‘correct me if I am wrong,’ repeatedly, and yet, instead of doing that, you point that there is no credbile evidence anyone else has done this (No shit- that is why secret programs are, you know, secret), and then launch into a series of attacks on me.
Really, it is Christmas Eve and all, but GFY. I am tired of you doing nothing but shitting all over me in a forum I provide for you free of charge and with little complaint.
Again, my perception was that this was nothing new and something that had been going on for ages. If I am wrong, fine. I don’t like it either way, I should add. But I am sick and tired of your bullshit.
John Cole
DougJ- I do not know how I am embarassing myself. I am coming from a standpoint of relative ignorance, as I stated repeatedly, and asked people to correct me if I am wrong. And you call that embarassing? Should I just do what you and Slide do- pretend I am 100% correct, and then when proven wrong, just move on to something else?
Really, I have not excused anything here, I am simply stating I thought this stuff was going on all along. And all you dicks do is come in here and shit all over me.
Read my post again, without your “John is being a Bush apologist” lens. I simply state I thought this stuff went on all along, and that this wasn;t really new information. If I am wrong, tell me how. I am not going to hide from the truth.
John Cole
IN fact, I even state some variation of “If I am wrong, fill me in” four fucking times. I don’t know how I could be more straight-forward. And yet all you guys do is charge me with bad faith and being a Bush apologist.
ppGaz
Like frogs who don’t realize that they are being set up to be boiled, we have allowed and accepted more and more intrusion into our lives thanks to technology, thanks to the relentless pressure of corporate lobbying in Washington, thanks to fear of communists and then fear of terrorists exploited by politicians all to happy to have something scary to manipulate us with …. none of this is news, particularly.
Two things. One, the fact that something “isn’t news” does not mean that it’s not damnable. The semantic trick of labeling something vile as “old news” has become a Republican, and particularly a Bush-Rove, trademark, and I am quite sick of it. I think you, John, can do better than to just go along with that sort of thing. Maybe it’s time for citizens to stand back from the Frankenstein government they’ve created and ponder what they have wrought? Maybe this would be a good time to do that?
Two, can there be any doubt whatever that this (Bush) government is the most un-trustworthy collection of crapheads that has ever run this country? I have no reason whatever to trust them or believe them. So why would I start giving them the benefit of the doubt now, on this NSA business?
Paddy O'Shea
John: When I was a young lad I would often find myself in all kinds of trouble. I was never the altar boy type. And when my mother was inevitably informed of my activities, I would attempt to excuse myself by saying something along the lines of, “But all the other kids were doing it, too!”
This defense never worked.
And it should not work for George W. Bush, either. It doesn’t matter if other people engaged in illegal wire or whatever tapping in the past or not. And it doesn’t matter if you or anyone else thought that this was something the NSA has been doing for all the while. Bush broke the law, and in the process violated some of the most sacred tenets of our Constitution.
For the sake of our Democracy he needs to be forced to face the consequences of his actions. No matter what Billy did.
Slide
For someone that admits to being a total ignoramus on the subject I find it a bit arrogant to be calling others disingenuous.
well then not only are you a total ignoramus you hang out with others equally oblivious.
I am so sick of this argument Clinton did it ! Clinton did it! especially in the absence of ANY evidence that that is case. You admit you don’t have a clue and then say you believe Clinton did it. I agree with DougJ, fucking embarrassing. And John I have told you this before, ban me if you want, its your blog. And you can GFY.
John Cole
Slide- I never mentioned Clinton, because I was under the impression this sort of stuff had been going on for decades. Again, the bad faith is on your part.
Slide
No the bad faith is on your side if you think that previous administrations have routinely violated the constitution and broken the law. And even more disturbing is your ho hum attitude about it. Amazing, and I thought you had a streak of libertarian in you. Your passioned arguments against the drug laws for example. They are more of a concern for you John? Light up your joint and think about your government wiretapping ALL of its citizens. Think of the potential ramifications. Perhaps with the added paranoia of cannibus you will see the light. But I tend to doubt it. Go watch a fucking football game.
Confederate Yankee
Slide, the Times article states:
By definition, these are international (between two or more countries) communications captured outside the United States. A little reading comprehension goes a long way.
The Fourth Amendment has a border search exemption that would seem to fit this set of circumstances perfectly. John is correct, the Times reporting what most of us already knew (or at least suspected), and is merely trying to gin up manufactured outrage.
The NSA is doing exactly what it was created to do six decades ago: sorting SigInt to try to keep America safe.
I’m sorry if you think that gives you the same “right” to make a phone call to terrorists in Afghanistan as you would have to call Grandma Millie in London.
My only question is how much more Risen and LichtBlau can or will reveal without becoming criminally culpable as their sources obviously are. I know there is such thing as a shield law in journalism, but I’m equally sure it has limits.
ppGaz
Call me a Pollyanna, but GFY just doesn’t seem Christmas-y.
Is it just me?
Sure, I’m definitely one who pulls the GFY out of the holster early, and often, when it’s called for. But it just doesn’t seem to fit in with the wrapping of the gifts and Mahalia Jackson’s “What Child Is This?”
Paddy O'Shea
Conned Yankee: Guess we’ll just have to wait for the Senate hearings, right? There are going to hearings, you know. And even Republicans are asking for them.
It will be exciting and informative to watch and see how the “But everybody else did it, too!” defense is going to hold up.
Domestic spying is against the law, Connie. You can parse, puff and do the apologist hokey pokey all night long, but the situation will not change.
This is going to be investigated.
Gold Star for Robot Boy
By definition, domestic means domestic. Reading comprehension, CY?
Slide
I agree, why don’t you try having some. Calling it international or not is semantics – it is still prohibitied by FISA if one party is a US person.
Confederate Yankee showing he doesn’t have a clue:
you are making my point idiot. I have NO PROBLEM with wiretappint phone calls to afghanistan terrorists. I”M IN LAW ENFORCEMENT. I LIKE WIRETAPS. But go to a judge, show him evidence that the guy in afghanistan is a terrorist and get your warrant. But what the governement is reportedly doing is wiretapping my call in Grandma Millie in London. Get it? Not just calls to Al Qaeda. ALL COMMUNICATIONS overseees. All. Every email. Every phone call. Big difference.
Those on the right keep trying to make the argument that we are trying to prevent the interception of communication between terrorists. what a straw man argument. No one I know has a problem with that.
Randolph Fritz
It’s news in that people are becoming more aware of it; that’s part of what the mass media do–focus public attention.
Slide
no comment
John Cole
First off, let me get his out of the way. GFY, again.
Second, I am much more concerned about no-knock raids and domestic surveillance by the FBI or other domestic agencies in non-national security related issues than I am an automated machine that sifts through trillions of bits of data.
Third, as to this remark:
Maybe your arrogance gets in the way, but sometimes it seems like you are using English as a second language. From the standpoint of someone like me, who thinks this sort of thing has been going on for decades, pretending this is new does seem disingenuous. Which is why I provided everyone with numerous opportunities to explain to me how this is new and how my perceptions are wrong.
You chose to insult me and be a dick. What a surprise.
DougJ
John, I don’t call you a Bush apologist nor do I normally read your posts with a “John is a Bush apologist” lens. Every now and then, your party affiliation gets the better of you and this is an example. Nobody’s perfect.
I can’t really talk about why I know this is wrong. I’ll just say I know people who work for the NSA and leave it at that.
I’m not trying to give you shit here, I’m just giving you a heads up that you’re going to look foolish if you’re not careful.
chef
Well, whether it went on in the past or not, it is illegal for the NSA to do wholesale eavesdropping on domestic targets without a warrant. Doing so anyway and getting a warrant later isn’t in the spirit of the organic act that set up the NSA.
There is a parallel to the WMD issue here. Just as the Adelman crowd expected a quick and successful war to reduce the WMD issue to nit-picking, the NSA attempted to use its domestic “pilot/trial” spying to make its warrant applications successful in advance. That is to say, when they asked the FISA court to approve massive speculative spying, the NSA could say “trust us on the basis of our success rate.” The success rate, in turn, was pre-ordained, because the NSA was selecting out targets already successfully spied on.
Gaming the system, as it were.
John Cole
That is it. Bye bye, Slide.
I am not arguing in defense of this program, nor have I attempted to justify the program. I have merely stated I thought this was going on for years, and that all the reactions the past few days seem out of proportion.
Maybe I am wrong, and this has been taken to a new and chilling level. Might be that I am right, and that this has been going on for years and that I am the one who had a realistic perception of what was going on.
Yo8u had a chance to explain your point, either way, and instead chose to be a dick. Don’t let the door hit you in the ass.
Try back in two weeks.
John Cole
DougJ- I am not sure how you look foolish in a post that says ‘I thought this was already going on and that people are overreacting, explain to me why I am wrong to think that.’
Brian
John,
Of course you are not wrong. As law prof/judge Richard Posner noted earlier this week, computers are not human beings, and are therefore not subject to privacy laws. The computers are required to search the vast volume of information out there, a job which no human is capable of. They sift the info down to the bare minimum required for human monitoring and investigation.
I paraphrased earlier this week in a comment here the writing of another blogger, saying “if I write daily emails to Pakistan demanding “where’s my stuff!!”, the NSA computers might look into this long enough to find that I’m buying a rug, not trying to procure terrorists. And, yes, I would think that talking about “bombs”, or “blowing up bridges” was discussed on phone calls of mine enough, I might get special notice, just like the bonehead at the airport security check would get noticed if he jokes about the same.
Much ado about nothing with this eavesdropping. The Constitution is safe.
vinc
Well, it says that Bush approved the program after September 11, which means that the program wasn’t in place before September 11, right?
DougJ
I see where you’re coming from. I guess I’m reacting to a tone and perhaps I’m not being fair.
Let me say this, though: talk to anyone at the NSA about what they do and one of the first things they will say is “We don’t spy on American citizens.” It’s really rules 1, 2, and 3. People at the NSA really freaking about this.
Cromagnon
I always assumed that our government agencies were following the laws and statutes required for such operations with proper checks and balances in place, rather than just making it up as they go along. I guess I was just naive
Tad Brennan
Yeah, I agree that “urban legends” of this kind have been around for a while.
But most sensible people don’t believe urban legends.
It just isn’t very wise, or sane, or a good use of one’s time, to buy into most of the urban legends, conspiracy theories, paranoid belief systems, and so on, that are floating around at any given time. Because you can be fairly sure that 90% or more are dead wrong, and there’s no evidence for any of them.
So: I agree, there have been urban legends like this around for a long time. And no sensible people put any credence in them at all.
That’s why there is something new here, something very new, that justifies a fair bit of surprise and outrage.
It’s called “evidence”. I.e., these new reports kick these stories out of the realm of “urban legend”, and into the realm of fact. (Sure, the evidence is unclear, so the facts are still a bit fuzzy. But it’s getting clear there’s a hard core of truth in there).
You don’t have to be disingenuous to react differently to a well-sourced story than you have to urban legends. I mean, there are urban legends that the Knights of Columbus killed JFK for dissing the Pope. And no one believes them, for good reason. Does this mean that if we now found a solid stash of documentary and forensic evidence that the KofC had killed JFK, it would be disingenuous to be shocked? I don’t think so. I think I’d be shocked.
It’s not like rumors and legends are evidence of a very, very weak kind. Rumors and legends don’t provide *any* reason to believe their content, at all, because the vast majority of them are false. You would actually acquire more falsehood than truth if you went around believing things, or even increasing your propensity to believe them, on the basis of urban legends. Instead, sensible people just hear them, say “oh yeah, another paranoid rant about the CIA spying on Americans–I hate that left-over hippy paranoia nonsense”, and walk on with their beliefs unchanged. (Except maybe you change your beliefs about the person who said it).
That’s why when I read these stories, I feel completely different about them than I felt about the urban legends. Those I dismissed. These I cannot.
So I guess I’m pretty much with you on whether there have been rumors around. But I disagree that what we have now is just more of the same. It’s really, really different.
capelza
DougJ…is this the reason that there seems to be a veritable flood of leaks in these pasr days. I’m not a wonk, so I haven’y kept up completely.
I’m getting a “they were looking for radiation through my phone lines and didn’t ask Congress if they could” mixed message…a big jumble for us wallflowers of the blogosphere.
Tad Brennan
Brian says:
“Much ado about nothing with this eavesdropping. The Constitution is safe.”
Look, I agree that the spying activities themselves are not facially incompatible with the constitution. There might well be a way to craft legislation to set up programs like the ones we have read about, and to have that legislation pass muster under judicial review.
But the executive did *not* try to get legislation passed. And it did *not* allow the courts to declare on its constitutionality. Instead, the executive just decided that it didn’t need those other two branches, and it could do whatever it wanted.
In fact, it seems to have violated laws that the legislature *had* enacted, specifically on this issue, and to have side-stepped the courts because it could not get warrants, or didn’t feel like getting them.
Until that executive gets a strong, forceful slap on the hand, you are wrong: the Constitution is not safe.
Paddy O'Shea
Another interesting article from today’s NY Times. I’m beginning to wonder if the Bush admin’s not so veiled threats against this paper are starting to backfire on them.
A Lone GOP Senator, Unknown, Holds Up An Intelligence Bill
http://www.nytimes.com/2005/12/24/politics/24intel.html?adxnnl=1&adxnnlx=1135401106-f80yGyyB9qKZc4ZcqqHPxQ
It would be nice to think that there are Republicans in this country willing to put the Constitution above the strange needs of the very odd fellow currently serving as president.
CaseyL
Yup:
NSA & CIA Reaction to WWiretapping Story
Definitely worth a read. Basically, morale is plumetting in both agencies as they see a return to the pre-Church Committee abuses, and a loss of credibility and effectiveness as a result.
One thing that stood out in the story was the effect on CIA’s Operations Directorate – that’s the spy service, the part of the CIA Valerie Plame worked for. That Directorate is losing people, fast.
It makes me wonder if outing Plame wasn’t ‘only’ about silencing a critic of the war. It makes me wonder whether outing Plame was also part of an ongoing project to undermine the CIA as an independent, law-constrained organization in order to bring back the pre-reform CIA: one that used and abused its powers at the behest of, and for the benefit of, the White House.
It’s fashionable to excoriate the Church Commission reforms of the CIA. Perhaps people should trouble themselves to remember why those reforms were enacted.
And, John, at the risk of joining the pile-on, I have to say your protestations of not knowing enough about the wiretap issue to come to any conclusions about it sound very much like scs’ ongoing defense-through-ignorance of ID. At some point, you need to realize the information you’re asking for is available – and very damning.
SoCalJustice
I’m just being repetitive at this point, but just to reinforce why the
sentiment is barely half right. This is what the NSA does. But it’s not supposed to target American citizens (or even more broadly, “U.S. persons”) without first obtaining a warrant from FISA court.
Again, to repeat, there’s an exception to that provision, in which the Bush administration has 72 hours to apply for a warrant after an emergency wiretap is deemed necessary. But if the Bush administration wiretaps an American citizen’s (or more broadly, a “U.S. person’s”) phone (or there is a “substantial likelihood” that the wiretap in place will capture the communications of an American citizen (or more broadly, a “U.S. person”), and the Bush administration does not apply for a FISA warrant (either at all, or within 72 hours after the fact if they’ve invoked the emergency provision), then they have violated the FISA law.
It’s not about NSA surveillance, it’s about NSA surveillance OF AMERICANS WITHOUT A WARRANT.
The FISA law may be considered cumbersome by many in the Bush administration and many of its supporters, but that does not make it any less of a law.
Eural
I guess the sticking point seems to be the word domestic – did the NSA purposefully and without warrent (either prior to or after the fact) spy on US citizens in the US? Now that is some very scary shit. For some reason this point seems crucial but “fuzzy”.
The same thing applies to the recent revelations concerning Muslims. The real issue would be cases where the government entired a private residence or business without warrent to plant information gathering tools. Again much different then observing a public gathering place from a public area and much more important. Yet again, very “fuzzy” in the news items I’m seeing/hearing.
Can anyone help me out here with details or evidence in either direction?
On a related topic I’ve been a fan of Alan Moore’s “V for Vendetta” for years and I can’t help but think how creepy the timing of the movie is – first delayed due to the subway bombings in London and now it will come out on the tails of this story. If you haven’t read it check it out – its spooky.
“Quis custodiet ipsos custodes.”
Paddy O'Shea
#1 story on Yahoo News right now:
NYT: NSA Spying Broader Than Bush Admitted
http://news.yahoo.com/fc/World/Espionage_and_Intelligence/
Once again the issue of Bush’s honesty comes up. Not that anyone should be surprised.
DougJ
I suspect so.
I know nothing about the legality of any of this, but this is much is clear:
(1) The notion that “now that the terorists know, we’ve lost a key tool” is bullshit: if you were an actual terrorist, you would have reason to believe that all your communication was tapped anyway, since that is perfectly legal with a warrant.
(2) If this were perfectly fine, Bush would have (a) gone through the usual Congressional channels to get it approved and (b) not begged the NYT not to publish the story.
It’s always important in these things to watch what people do, now what they say. Regardlss of how many Posners and Toensings they send out to talk about whether or not this is legal, the fact remains: Bush is acting like someone who knows that this is not kosher.
Nash
You know, that’s the really funny thing about our constitution. It tells our government what we will and will not permit it to do in our names–in this case, in terms of searches and seizures. For some very strange inexplicable and I’m sure indefensible reason, it just didn’t have the forsight to to tell Choicepoint what Choicepoint was allowed to do in these very same areas.
And before you go into one of your stupid, patented hissy fits about how that’s not what you said, spare me the indignation. I’m just commentin’.
Paddy O'Shea
MSNBC Live Vote:
Should Bush Be Impeached?
85% Yes
15% Divided among 3 categories, including ‘I Don’t Know.’
144,124 responses so far.
http://www.msnbc.msn.com/id/10562904#survey
Now we all know about ‘Live” online polls, but to me this shows a certain level of anger out there over Snoop Doggy Bush’s highly illegal domestic spying.
ppGaz
Exactly. Precisely. Bullseye. The Spuds are doing perfect imitations of folks caught with their hands in the cookie jar. The explosion of “b-b-b-b-b-b-but ….” defenders is a little too much.
I have just one thing to say to all the righties who are climbing over each other to mount a defense of this behavior: Why the FUCK should we believe you? What have you done to garner the trust and confidence of your fellow Americans these last five years?
This is what the phrase “protest too much” was invented for.
Nash
In this case, I think you are being genuine. You do start, however, from a presumption that this has been going on for a long time and proceed quickly to the implication that this in any way mitigates against anyone feeling a bit upset that it has been going on for a long time. The further implication is that anyone who feels a bit upset that this has been going on is a hypocrite for getting upset about it just now, at this very moment. As if we are supposed to get upset about what there is we get upset about on someone else’s permitted schedule. As if we aren’t human and have competing things in our little noggins about what it is today that we should get upsot. Let’s say you skinned your knee yesterday. You might be understandably upset about that. But if I stick my rhetorical finger in your eye today, like I have done before, does it make you a hypocrite to exclaim “It really annoys me that you have just stuck your finger in my eye?”
You might also at least admit that “I don’t know if I’m right–tell me if I’m wrong (and prove it with links)” is the second-to-last rhetorical refuge of a sarcastic, cynical scoundrel.
I don’t think you are doing that here. On the other hand, it is done in this blog all the time–cf, The Opus of Darrell.
demimondian
I wonder if the leak of the radiation monitoring story was intended to cloud the communications monitoring story. They’re quite different, and have different standings.
The radiation monitoring story depends on sampling a public resource (the air) for a particular substance without any identifiable source, which is unquestionably legal without a warrant. The communications monitoring story is a very different story — and is much scarier.
John S.
I wonder how familiar Bush is with Kashrut law…
demimondian
John — Remember the old saying: “When it comes to classified information, the people who know don’t talk, and the people who talk don’t know.” In this case, the people around here who might be able to speak with genuine authority are not going to do so. Intercept folks are closed-mouthed enough, but analysis guys take that to an even higher level. What they know about what we know would be valuable to an enemy, and they know that. So you’re going to have to accept that nobody with authority will comment on the details of what you’re saying.
jg
Better?
Even if its gone on for decades (it hasn’t) I can’t get mad when I found out now?
Cheney says they’re just restoring presidential powers that had been restricted for decades. Wouldn’t that imply that Clinton couldn’t have been doing this?
The issue is that Bush feels he doesn’t have to get a retroactive warrant when spying domestically as its spelled out in FISA. Its not the argument Darrell keeps pimping that JC is now caught in. Its not about Bushs’ ability or freedom to spy on foreigners. He can do that so can every other president. Because of Nixon FISA was set up to monitor executive branch surveilance of domestic targets. Bush feels he doesn’t have to submit to the monitoring.
All the stuff about past presidents, and planes crashing into more buildings and blowtorches is just Chewbacca crap.
Nash
That’s a very poor line of argument. It is just possible that some of the complaining is for political purposes and that alone might explain the timing. I can agree with you and still think you shoot yourself in the foot with poor reasoning like that.
KC
Yes, it is a popular story. Lots of Hollywood movies are based around the concept. However, the administration’s data mining project probably violates the law. If they wanted to do such stuff, they should have been forthright with Congress from the outset. The fact is that their other Poindexter led data mining operation was shot down by Congress; they knew this one would be similarly unpopular.
Lets not defend these sorts of actions by saying 1) oh, everyone does it (watch the movies!) and 2) we should trust them with this power. Such defenses really appear to be an excercise of in excuse making and a way to deal with what was almost certainly (rightwing fog-and-smoke shows not withstanding) a violation of the law. Congress needs to look into this matter promptly and judiciously.
Paddy O'Shea
It’s about 80 degrees here today. Gonna take the kids on over to Zuma Beach/Point Dume for a little seaside recreation. Apparently the surf is still pretty high from some sort of Northwest disturbance earlier this week, so I’m going to pack the board as well.
Enjoy the rest of your day.
Paddy
snorkel
This scares me. Have they also gained the cooperation of other companies? I am thinking of producers of commercial encryption software. Have they asked them to put a “trap door” into their encryption algorithms to make it especially easy for NSA to decode without anyone else being the wiser?
T Mag
It scares me, too. But maybe it’s something we need in order to foil terrorism. It’s a tough question.
KC
I kind of like what Kevin says about the program:
I think that’s what we really need to be thinking about here. What kind of unchecked power we want to give presidents. Not, as John is discussing, what Hollywood or popular culture throws at us. The fact is there are ample cases in history of presidents taking things too far.
jg
NIXON
Mike S
If this administration hadn’t been so disengenuous about just about everything they’ve done I’d be more predisposed to thinking that this isn’t such a big deal. But they have been and combining this story with the DoD and FBI surveilance just exaserbates the situation.
They use everything as a political club amd it’s hard to imagine this is much different. In 2004 there were alerts a plenty and they just stopped cold after the election.
Perry Como
The problem with the machine based stuff is that the focus can be changed at any time. In past years they would have been looking for communist related keywords. Now they are looking for terrorism related keywords.
If they are using this sort of thing domestically — and like you, I have assumed they are — they can turn these tools to on the domestic populace for non-“the baddie is going to get us” reasons quite easily. The revelation that the FBI has been pulling more COINTELPRO type stuff, or the fact that COINTELPRO ever existed is enough to make sure that the NSA should have loads of oversight.
The difference is that Choicepoint doesn’t have armed agents that can bust down your door and lock you up. I don’t like Choicepoint, but they aren’t the same thing as the government.
Back to the NSA, the thing that’s bothersome about the recent revelations is that apparently NSA people are speaking out. The NY Times could be making the entire thing up. Or perhaps the NSA workers just hate Bush. But if neither of the those are true, then there has been some sort of policy shift on domestic spying. Something outside the previous scope of ECHELON.
Bruce Moomaw
“Slide” and “SoCal Justice” are bang on — the use of this on DOMESTIC communications is a gigantic step upward, and the revelation that they’re doing it with no independent oversight whatsoever to make sure that they’re not using it in illicit ways (which, according to William Arkin in the Post yesterday, is exactly what they ARE doing) is of gigantic importance. John, I’m getting tired of your stubbborn refusal to even try to understand what we’re all talking about here. As Kevin Drum also keeps saying, it’s not that data mining and wiretapping shouldn’t be used against terrorism — it’s that the White House shouldn’t be free to use them for ANY OTHER GODDAMN PURPOSE IT CHOOSES, WITH NO INDEPENDENT OVERSIGHT AT ALL TO MAKE SURE IT ISN’T DOING SO. We’ve been down that road before.
As for Brian’s comment: he fails to mention that Posner, in the same article, also announced — with a straight face — that it was unimportant if the administration really WAS wiretapping calls both without a warrant and without any actual justification, because the amount of harm they can do is limited by the Court of Public Opinion and so we don’t really need search warrants at all. That is, he came out explicitly against the Fourth Amendment.
DougJ
Exactly.
Slide
judging from the comments, it seems many more agree with me than with you John. I don’t blame you for banning me as I consistantly show you up for the bush apologist you are. enjoy your Christmas John, sorry you are so thin skinned and have such a fragile ego. Pot will do that to you sometimes.. take a break from the stuff ok… try some eggnog.
[Edited by John]
This is the kind of comment that is why I am banning you for two weeks- you do nothing but make bad faith arguments about me.
Have a nice two week break. And I will delete all the other comments where you called me a f—ing coward. -John
EL
I will throw a side perspective in this, John. Focus for a moment on what a few other posters have said about the agencies, and what the Knight-Ridder article mentions. Not only has the administration broken the FISA law and not allowed oversight (briefing isn’t oversight) but Bush has betrayed the ‘troops’ of the intelligence community. The people whose charter is that they don’t spy on Americans without a warrant, that they are patriotic Americans who adhere to the law of the land – all betrayed and their charter made lies.
Bruce Moomaw
In this connection, note also the genuinely sinister significance of the revelation yesterday that Alito favored stripping everyone in the US of the ability to ever sue the Atorney General at all for ordering any illegal wiretaps. As Matt Yglesias says, it’s not exactly coincidental that an administration which is eager to break the law is also eager to put judges on the Supreme Court who think it shouldn’t be punished for doing so (something we’ve also seen where both Roberts’ and Alito’s attitude toward government abuse of detainees is concerned, as Andrew Sullivan among many others has pointed out).
Perry Como
I’m really, really not trying to join the blame Bush chorus on this issue. Gov. Richardson (D – NM) was on a talking heads show the other night discussing the NSA domestic spying. He mentioned that he saw an NSA intercept that had his name on it. He saw another with Colin Powell’s name. Unless Gov. Richardson and General Powell have recently signed up for al Qaeda, something stinks.
DougJ
That’s what makes this an emotional issue for me. I know about half a dozen people who work at the NSA and I wonder how many are now facing the decision of quitting and trying to find new work (which isn’t easy since no one else does quite what the NSA does) or continue to work for people who stabbed them in the back.
tbrosz
I hear this a lot. There’s a big difference in knowing that a highway has police speed traps and having signs posted on the road saying “speed trap in 1 mile.”
Significant capabilities have been exposed and at least partially neutralized in the past couple of weeks, including monitoring programs for nuclear material.
Nobody’s kidding anyone here. This isn’t about a sudden concern for civil liberties and privacy (for a good time, look up some examples of what the NYT digs up when investigating someone). It’s about driving a wooden stake through George W. Bush. If the NSA didn’t exist, the Times would be printing stories about how Bush is failing to keep the country secure.
tbrosz
John:
Don’t let them wear you down. When it comes down to it, remember the Marty McFly Epiphany.
Mike S
I’m also surprised this isn’t getting more attention. For the life of me I can’t figure out why the New GOP is so different from the old GOP.
link
Perry Como
Trust the government. It’s always been a conservative principle.
Ancient Purple
Speak for yourself! I don’t care who is involved, I want the warrantless stuff to stop. If Clinton, Nixon, Carter, Roosevelt, Cleveland, Taylor, etc. did something like this, I would be angry at them, too.
My allegiance is to the Constitution, not a party or a person. So, tbrosz, take your broad brush diatribe and stick it.
Ancient Purple
All we are doing here is protecting the lives of American citizens. Anyone of those people randomly stopped could be terrorists.
The Constitution is safe.
Nothing to see here. Move along.
Mike S
tbrozz is a prime example of one of those new Republicans. If President Hillary Clinton were to use any of the powers that President Bush has decided he has the New GOP will be all over her demanding investigations.
Zifnab
That bit between Slide and John got hostile rather quick. Seriously, both of you guys sit back, smoke a joint, relax, and gather your thoughts.
I think it’s blatantly obvious that John doesn’t do much apologizing for anyone, much less the Bush Administration. Frankly, when you’re already living in the paranoid worldview that every call is monitored and every piece of mail searched, the realization that its all true is not nearly as shocking. And a squad of DEA or FBI or CIA or NSA or KGB or whatever comes pounding down my front door, I agree that it’s substantially more terrifying than them using a Cray computer to read through every dirty letter I send ever sent to a girlfriend.
However, two wrongs don’t make a right. Two decades of wrongs don’t make it any better. If the government has been conducting illegal searches on domestic communiques for years, they’ve been committing a crime for years and the system needs to be shut down/turned away/filtered/whatever from spying on innocent US citizens.
After Swift-Boating for Truth and Crying WMDs and all the crockodile tears shed over Valarie Plame, I trust this administration the least of all the Presidents I’ve lived under (admittedly only 4). If ever there was a President that proved what an abuse of power can entail, this is him. If ever there was a reason to reform a system that seems to green-flag flagrant violation of 4th Amendment rights, this is a good reason. I don’t care if Clinton did it or Bush Sr. did it or James K. Polk did it. I care that I’m being monitored right now and I want it to stop.
Perry Como
Sorry, not gonna happen. The best we can ask for is oversight.
Paddy O'Shea
Barron’s: Congress Should Consider Impeachment
“It is important to be clear than an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.”
In case you are not aware, Barrons is a Wall Street Journal
publication. Hardly a hot bed of wild-eyed radicalism.
http://www.huffingtonpost.com/2005/12/24/barrons-congre_n_12841.html
OK, now I can get out of here.
John S.
Folks like tbrosz erroneously claim that the outrage over a clear abuse of power stems from a “get Bush at all costs” attitude because they assume that this is the natural opposite to their position of “defend Bush at all costs”.
This is a false duality. In my opinion, I think it is safe to say that most people who are outaged by this fear for the sanctity of our way of life. That is, once a President starts wiping his ass with our Constitution, when does he start pissing on the Bill of Rights.
If anything, libretarians should be the FIRST political group to be put off by this situation.
Pb
Hey tbrosz, your shoe’s untied!
John, the new part here is the part where the NSA–under the explicit direction of the President–might be willfully violating the Fourth Amendment.
Davebo
Shorter tbroz..
Davebo
May be just me, but it seems simple enough.
If you don’t want to take political flack for violating federal law….
Don’t violate federal law.
A reader
John,
Here is an example of how one can appear to be an apologist even though they qualify their response–multiple times–afterwards:
“I may be out of my depth here, but it seems to me that Bush was totally justified in engaging in acts that break the law. After all, other presidents have broken the law in the past. We’re in a war. He should do what he thinks is best. So, if he broke the law, as established by Congress, he was responding to a higher law, which is necessary in a time of war. Of course, I am just defending the Constitution here, and I am not a lawyer. But, why shouldn’t he protect US citizens with such actions. Correct me if I am wrong, but other people have!”
The problem with such an argument is that one does in fact apologize for Bush–that the writer believes and states that it is justified even if Bush violated Congressional legislation–and then attempts to protect themselves against criticism of that very view, which, after all, they have chosen to express, with such statements as “correct me if I am wrong.”
The “I” in this sentence is the person who is expressing the belief. The belief is that Bush is justified even if it is a violation. This belief is an apologia. That is not changed by statements that offer others the opportunity to correct–these merely say “I believe this. You can say what you believe.” It would, however, be changed by an expressed belief that is not an apologia, e.g.:
I believe that it was fine for John to take the cookies. Everyone takes cookies now and then. Of course, correct me if I’m wrong.
vs.
I don’t believe it’s ok to take the cookies, because it’s against the law.
The first is a justification and apologia for John. It is an expressed belief that John was right in doing something wrong. “Correct me if I’m wrong” doesn’t change that.
Moreover, when people took you up on this invitation, you attacked them for doing exactly what you had invited them to do–to correct you–which they did, John, not merely with invective, as you are likely to claim, but with specific factual information–that is, corrections. For if you are wrong.
Instead of taking the corrections which you invited, and which you cite as the evidence that you were not an apologist for Bush, you instead attacked the correctors, further illustrating the purely strategic, defensive and ancillary function of the “correct me” statements.
This, I think, is the danger of a blog where you become known for having a certain position. You feel a need to live up to it, to reinforce the brand, even where you might otherwise disagree with some brand inconsistent positions.
Either apologize for him and stand behind it, or accept the doubts that you invite, John.
ats
What about the intercepts Bolton sought? It was mentioned during his confirmation hearings. Why is there no follow-up?
Pb
ats,
Because that would require some real congressional oversight–something we haven’t had in a while.
John Cole
A Reader-
That is all well and good, but I did none of what you said. I simply stated I thought this had been going on for a long time, and to correct me if I was wrong.
Slide took the opportunity (and we have history) to simply start insulting me again. I got tired of it. notice, the only two comments I have addressed are the ones which attack me, and not ones that add information or correct the record.
Bruce Moomaw
Tbrosz: “Significant capabilities have been exposed and at least partially neutralized in the past couple of weeks, including monitoring programs for nuclear material.
“Nobody’s kidding anyone here. This isn’t about a sudden concern for civil liberties and privacy (for a good time, look up some examples of what the NYT digs up when investigating someone). It’s about driving a wooden stake through George W. Bush. If the NSA didn’t exist, the Times would be printing stories about how Bush is failing to keep the country secure.”
In reality, of course, Tbrosz — as he very often does — is doing a magnificent job of kidding himself. Exactly how is it going to detract from the anti-terrorist efficiency of this system to put in some elementary FISA-type safeguards to keep the government from illicitly using it for other purposes? Say, providing some judicial monitors to keep the other gigantic amount of information raked up by the data-mining system as a side effect from being misused; or making sure that that information — if it’s rated as irrelevant to its official purpose — is erased within a month (which, according to William Arkin yesterday, is exactly what the Pentagon is deliberately NOT doing); or making sure that the system isn’t programmed with some new codephrases having nothing to do with terrorism and everything to do with possible stuff the White House can use against its political enemies (like a certain past Administration one could name)? Or going to Congress to officially loosen the retroactive wiretapping period allowed by FISA from 3 days to say, 5 days, instead of simply ignoring it completely?
And, Mr. T.B., the power the government has to abuse its political enemies by invading their legitimate privacy is just a wee bit greater than that of the NY Times. (As we also discovered in 1973, since you seem to have forgotten it.)
Bruce Moomaw
Footnote: The people who are Just Out To Get Bush in this case include — so far — George Will (see his latest Post column), Lindsay Graham, Arlen Specter, and John McCain.
Bruce Moomaw
I think, like Kevin Drum, that there IS a way to do it in a way that is effective against terrorist plots without smashing up our basic democratic rights to kingdom come — if, that is, we ever get a government that cares about that little problem AT ALL. See any evidence that this is that government? (And, where the danger of smuggled nukes is concerned, should it not be obvious even to Tbrosz that this just further emphasizes the vital importance of the government getting off its duff and focusing on trying to prevent nuclear proliferation as its #1 priority?)
And, John, be sure to read Arkin’s column from the preceding day — in which he reveals what the Pentagon is actually up to right now, illegally, in this regard.
Davebo
I certainly noticed. An acknowledgement would have seemed appropriate. Sort of like, wow! I was totally misinformed about the topic that has been discussed ad nauseum on my own blog.
John Cole
Gimme a break, Davebo- Half of what is in the comments here and 95% of what you write is little more tha partisan chest-thumping, hysterical speculation, or passive-aggressive screaming matches in which you each try to seewho can insult the other the most while pretending to put forward an argument.
The idea that these issues have been discussed ad nauseum, particularly in light of the fact that the accusations discussed here were JUST MADE WITHIN THE LAST 24 hours, is absurd.
I do my best to stay on top of things, but I can’t know everything that is going on, and all this post was intended to say was that I thought this stuff had been going on for years, so claiming this is a new thing, from my perspective, was silly. If I am wrong, and this is a new thing, well, that should make for some interesting Senate hearings.
Ancient Purple
And now this…
Telecom companies are helping the Bush administration in collecting the data.
Yup. Nothing like helping out our King. I guess those tax breaks will keep on making their way to businesses.
ppGaz
There are times, John, when the “you commenters don’t understand me” routine wears a little thin.
This is shaping up to be one of those times.
Sometimes you’d be surprised what we understand.
Richard Bottoms
I read the Puzzle Palace too, and I was in the Army Signal Corps at the time. I knew full well the NSA was going to be scooping up every bit of foreign communications after 9/11.
What part of get a warrant to spy on US citizens don’t you understand? Start spying immediately if you need too. Request a warrant within 72 hours. We’ll cut you some slack if we are under full scale attack.
The reason they didn’t want to go to the courts is they wanted to spy on reporters. Jeez how hard is that to guess.
tbrosz
Bruce:
The easiest way to tell what some of the real motivations are is that the ranting against Bush started in earnest after the very first NYT article. Nobody actually knew how the program worked, who had actually been briefed or not, and what the legal issues really were. As time goes on, this is proving to be much less of a “slam dunk” than the Democrats were hoping, and more methodical bloggers like Tom Macquire and others are starting to bring out more of the details.
For one thing, it’s obvious that the NSA program wasn’t as big a surprise to the Democrats as they’re trying to make it look.
John basically says that he doesn’t have all the information he would like, and suddenly he’s a blasphemer for not jumping enthusiastically onto the Impeachement Bandwagon. I see this instant excommunication on some other boards run by reasonable commenters, too.
Once-ler
Here’s what bothers me about John’s reaction to this. It fits a pattern I’ve noticed among many Republicans, Bush apologists, and much of the press. Here’s the reaction when it’s only suspected that Bush is lying about NSA spying, Valerie Plame, WMD in Iraq, etc.:
“Take off your tinfoil hat, you crazy conspiracy theorist.”
Here’s the reaction after it’s confirmed that he’s lying:
“Everybody always knew that anyway, it’s not news. Nothing to see here, move along.”
So when, exactly, are we supposed to be outraged at outrageous behavior?
Paddy O'Shea
http://mediamatters.org/items/200512240002
Media Matters: Top 12 Media Myths & Falsehoods on the Bush Administration Spying Scandal
1) Timeliness necessitated bypassing Fisa Court
2) Congress was adequately informed of–and approved–the administration’s actions
3) Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Survelliance Act
4) Clinton, Carter also authorized warrantless searches of U.S. citizens
5) Only Democrats are concerned about the bush administration’s secret surveillance
6) Debate is between those supporting civil liberties and those seeking to prevent terrorism
7) Bin Laden phone leak demonstrates how leak of spy operation could damage national security
8) Gorelick testimony proved Clinton asserted “the same authority” as bush
9) Aldrich Ames investigation is an example of Clinton admin bypassing FISA regulations
10) Clinton admin conducted domestic spying
11) Moussaoui case proved that FISA probable-cause standard impedes terrorism probes
12) A 2002 FISA review court opinion makes clear that Bush acted legally
Read the article. Goes into depth on each one of these Bush apologist canards.
Bring on the Senate hearings!
The Disenfranchised Voter
Look, I KNOW this type of shit was going on with private companies but private companies arent bound by the 4th amendment.
I did NOT think the government was doing this type of shit, specifically b/c of the 4th amendment restrictions.
Past presidents have not authorized warrantless searchs on American citizens, from what we know. Both Clinton and Carter’s executive orders explicitly forbid the warrantless searches of American citizens.
Richard Bottoms
Last I heard, Choicepoint can’t put you on a plane and fly you to Uzbekestan if they don’t like your profile.
SmilingPolitely
Wait, so does this mean that Oliver Stone’s “crazy” conspiracies aren’t that far off?
Charlie (Colorado)
Doug, you should talk to your NSA friends about this. Assuming they actually do collection and aren’t, say, janitors, they’ll tell you you’re mistaken on #1. See the comment I wrote at Volokh for the first five things that occurred to me offhand. (I’m an old intelligence guy and also a computer security theoretician, this is kind of my business.)
If you read the applicable statutes, (50 USC §1801ff) you’ll find that the Administration did the Congressional notifications they’re required to do, so #2a is also wrong.
As for #2b, if they had a secret program they wanted to keep secret, having the DCI, the DNI or even the President “beg” them not to publish is exactly what they’d do, and have done for 60 years. FDR would have just told them how long they’d be waiting in jail before they got a toothbrush.
Now, you tell me what to think of a major US newspaper that, when “begged” not to publish a super-secret program by the president, does it anyway.
Pooh
Charlie,
I tend to think they’re doing their job. (The insiders who leaked is a different story, which depends entirely on the legality of the undlying program.)
Paddy O'Shea
Charlie from Colorado: Most people who have committed crimes would hope that newspapers would not print accounts of their wrongdoings. All crime is secret until it has been exposed. Even when so-called presidents commit them. it’s called a cover-up.
The rest of your post is also bullshit. Bush has been caught with his dick in the dog and the Senate is going to hold hearings. And even Republicans are calling for them.
Stop blaming the messengers and deal with reality.
Bruce Moomaw
Seth, of course, is right — how the hell do we know if the president is doing something he’s absolutely not supposed to do without some kind of reasonably independent agency monitoring him? This is not that hard a concept to understand, guys — especially when such an agency could be desgned easily without crimping actual valid security measures at all, and especially when we’re dealing with something as utterly new, as-yet totally unregulated, and full of potential for massive abuse as data mining.
As for the “Congressional notifications they’re required to do”: since they notified exactly 8 members of Congress, who were forbidden to tell any other members about it or to consult anyone about the legality of such a (hypothetical) system, would you mind telling me exactly what kind of “Congressional oversight” this constitutes? In short, Brosz’s and Charlie’s idea of “proper security measures” would be Richard Nixon’s wet dream.
By the way, in my list of Traitorous Pinkos (Will, Graham, Specter, etc.) who are questioning Bush’s right to do this, I forgot to include Jim Hoagland (see HIS latest Post column as well). The big question, of course, is WHY Bush is doing it. Will ascribes it to plain cretinous stubbornness (“this administration’s almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled”). In reality, it may be motivated either by idiotic stubbornness or by shifty intent, both being primary traits of this administration.
DougJ
You’re an asshole.
I feel safer already knowing you’re not on the job.
I’m not going to Voloch to read your oh-so-wise comments there, you pompous ass. If you’ve got an arugment to make, write it here.
Have a merry Christmas.
ppGaz
Now, now, remember the lessons of 911. This is no time to be denigrating the Commander in Chief.
The Disenfranchised Voter
Shut up…seriously. The only damage this did is damage to the Bush Adminstration. The vast majority of security analysts admit that the revelation of this barely did any damage to our National Security. Frankly, your ass should be thankful that the Times didn’t release this shit last year because Bush would have lost to Kerry if that had been the case.
If anything, their suppression of the story seems highly suspcious to me.
Al Maviva
A “pin register” trace – looking at a phone number, and tracking all the incoming number calls and outgoing number calls – is permissible without a warrant, even as between US persons. It has been permissible for a very long time. So has a “mail cover” surveillance – looking at a particular recipient address, and recording the address and envelope “litter” of incoming and outgoing mail. Again permissible, without a warrant, even as between US persons. The government only gets to record the outside of the communications – records that third parties (like phone companies, telemarketing companies, and postal carriers and secretaries) routinely look at. The legal theory justifying these warrantless “searches” is that there can be no reasonable expectation of privacy in something you pass to unknown, numerous third parties. There is a reasonable expectation of privacy, however, in the inside of an envelope, or in the contents of an email or phonecall – the words are protected. Got that? The expectation of privacy in the contents, none in the label. Traces on email traffic attempting to do the same thing, proceeding along the same theory, have met with mixed results in the courts. The problem with an email header is that it bears a subject line and other materials above and beyond what a phone number, or the outside of an envelope would give you. The courts that have okayed warrantless searches of email headers have done so on the mail cover theory – that the headers,sometimes including the underlying hidden text – are machine generated, read by other people’s machines, etc, and only the actual text body of the message is “content.” Courts ruling the other way, if I recall the cases I read, it’s been a while, note that the subject line is content, and the underlying, often hidden header, tells you more than an envelope would.
You could structure one type of analysis around pin registers – on phone numbers – which would look at a lot of people’s phone call records but not dig into privacy information. Simply start with the phone number of a known AQ member, then trace that to the people called. Don’t monitor the contents, just pull the numbers. Take that set of numbers, and do a pin register trace. And so on, and so forth, through “X” iterations. Then take the phone numbers, and put them into a social network diagram – like this one – http://www.namebase.org/cgi-bin/nb06?_INDEPENDENCE_INSTITUTE_
You could then isolate the numbers that seem to be lynchpins, and use that information (“the person at 555-1212 is tied to 3 actual known AQ phones, and 15 people in the US or elsewhere who have 2nd degree ties, 22 people with 3d degree ties”) as probable cause on which to base the warrant, on which monitoring of the content of 555-1212’s calls would be based. While pin register monitoring and mail covers may be creepy, they are permissible without a warrant, or at least have been up to this point.
I believe that the Act also permits content monitoring until it is known that likely US persons are involved, at which point the agency has a period of time under a “minimization procedure” to evaluate the information collected, and either purge it or put it into the retroactive warrant process. Information held in that minimization period could be exploited prior to destruction, which is what the Able Danger team appeared to take advantage of, going back to 1999 – 2001. There is a “threat to bodily harm” exception to FISA that strikes me as a large loophole here. Feeding in the known facts… I don’t know enough about the facts to know where the Administration stands legally, only that there are ways to do a lot of the things they want to do by taking advantage of clearly provided procedures, or slack spots in the law. If they have in fact broken the law, and I believe the FISA court will have an opinion on this following their upcoming briefing, more’s the tragedy, because I’m not sure that the Administration needed to break the law to get the mission done. The other possibility raised initially by Ars Technica, is that the technology has moved into an area not well governed by the law. I’m still keeping an open mind before I draw a final conclusion either way.
Bruce Moomaw
One more point: if they really are just bugging international conversations, obviously any threat to proper civil liberties in the US is gigantically reduced — but we have no way right now of even knowing whether they’re doing that, and both last night’s NY Times story and William Arkin’s Dec. 20 Post column raise the very serious possibility that they’re not.
demimondian
Al, that’s the best presentation of the general practice of data mining for pump priming that I’ve ever seen. It shows the key points: that there is a need for a starting point (random fishing expeditions through the swamp of available data are basically useless), then the key trick to to connect dots using common connections and relationships, and that (most importantly) the results, by themselves, are next to useless except as starting points for further investigation.
Your discussion also shows why the President might be in a bad spot from a legal perspective if that’s what was done. The Congress has repeatedly refused to fund or allow projects of that kind, so the President, even under his authority as CinC in a time of war, would be workign against the express wishes of Congress. Moreover, the confused situation of email surveillance shows that the courts have backed away from the traditional “if you say it in a restaurant, it isn’t private any more” stance to which they used to adhere.
Pooh
Al,
Interesting post. I thought you did need a warrant to run a pen register, but I could be mistaken, do you have a case site? Minor quibble, I think you have the burden inverted, in that to warrantless surveile:
“Sec 1802 (a)(1)- (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”
Within the context what the AG must certify under Sec. 1802, this seems to mean an affirmative showing of no substantial likelihood (it being a reasonable assumption that, on U.S. soil, a ‘U.S. Person’ is going to be surveiled.) Yeah, yeah, proving a negative, but the burde is on the gov’t, not the other way around.
Pooh
Dem,
I think you are overstating your case slightly – Congressional ‘refusal to fund’ is not the same as Congressional ‘denial of power’, if that makes sense. It’s more a Youngstown type II than type III.
demimondian
Well, I’ll acknowledge that it’s a…grey area, ok? In this case, though, I really don’t think I’m overstating the case. Given the deference that the Congress gives to the President’s powers, the formal removal of funding, accompanied by clauses in the appropriations bill requiring that money not be disbursed for the purpose, is about as far as the Congress can go. I’d need to look at the Congressional Record to know exactly what the Congress meant by it, but I’d be inclined to think that it’s really closer to a Youngstown Type III, and I’d certainly bve prepared to argue that claim.
Perry Como
Al Maviva Says:
In between snarks, I’ve been speculating that may be the case. It is perfectly plausible to see a scenario where the NSA is monitoring communications but not actually looking at the contents. If they are running that type of analysis then they are not violating FISA.
Pooh Says:
Pooh, that’s the main issue. We don’t know the scope of the program, but if it’s monitoring where the communications go, not the contents, then FISA doesn’t cover it. I’m not sure about the case law around pin taps, but considering the program is US->foreign, the NSA could pull the info at places outside of the US.
Tractarian
Here are Charlie (Colorado)’s first five things that occurred to him offhand.
1) Al Qaeda almost certainly knew that there were “active intercept programs going on” before this leak
2) There was no change in the reaction time (spy now, warrant later is allowed by FISA)
3) Even if Bush had followed FISA procedure, terrorists aren’t protected by being US Persons. (they are protected from warrantless searches but with spy-now-warrant-later, that’s a distinction without a difference)
4) Again, spy-now-warrant-later makes this argument BS.
5) I can’t argue here – Al Qaeda will get a morale boost from knowing that the US is in a constitutional crisis. They probably also get a morale boost knowing that the US President must follow the law.
Al Maviva
Upon further reading, you are correct, I am mistaken about the availability of warrantless pen registers, Pooh. I conflated two sections of the Act in question regulating the activity, probably because there is a warrantless method of obtaining the same records. The use of pen register and traces is generally subject to a warrant requirement, per the Electronic Communications Privacy Act of ’86. There is, however, an exception that provides a workaround to the warrant requirement. Section 2709 of the Act requires telecommunications companies to turn over transactional, toll and billing data to the FBI upon request. The FBI must certify in its request that the information sought is requested based on specific and articulable facts that the individuals communicating are foreign powers, or agents of foreign powers.
Thus, while a live pen register requires a warrant, the FBI can get the telecom records of the phone based on a properly made out request. Presumably, the request could be made as soon as the call ends. Much of the back and forth over the last week has involved how broadly the executive branch defines those “agents of a foreign power” subject to this treatment. The standard is “reasonable articulable facts”, which is awfully low. “A received a call from known AQ leader. He then called 4 other people. We know AQ is a bad foreign power and believe A is leading a conspiracy for AQ, and that individuals A through E are agents of a foreign power.” I think that probably meets the low reasonable articulable facts standardm at least the way the government would view it, and the FBI still gets a stack of phone numbers to play with.
That’s my take on it anyhow, this would make the analysis I outlined above a data mining operation, with no live monitoring past the initial phone call. Not my area of the law, to be sure, so I’d be interested to hear your take on it.
Nash
I’ve finally put my finger on why that line of argument seemed like a canard. It’s this:
The leak to the NYT occurred 14 months ago. Right away, the Bush Administration knew that the NYT had this story, because they successfully got the NYT to spike it for more than a year. So, the Bush Adminstration KNEW about this leak and did not move to investigate it until it became public. They could have asked the Justice Department to look into it quietly a year ago, just as the CIA asked the Justice Department to look into the Plame case. But, President Bush clearly stated the other day that there had been no investigation and that he thought one should be launched. He should have gotten one launched a year ago, if it really mattered to him, and wasn’t a political ploy.
That says to me that the leak “outrage” is false.
I’m not interested in hearing how the leak investigation would have blown the program.
demimondian
What I find interesting about your analysis is that it doesn’t require the far more intrusive “voice identification” or “phrase identification” which have been played out in the press. My sense is that those would require warrants if there was a “US person” involved.
I’d also be exceedingly curious what the case law for IP based communications protocols (email, instant messaging, web/https, or voice over IP). I wonder what people think of those?
Pooh
dem, IP law on this issue is most assuredly NOT my area. That being said, one of my former classmates is big into this area, so I know enough to say that it is a mess.
Al,
That gets us back to the crux of my point. Assuming that there are such ‘reasonable articulable facts’ there is no problem. Unfortunately, without oversight, that exception swallows the rule – if executive declaration is enough, virtually no executive action is outside that scope. (Yes, that is reductio ad absurdum, but that’s where we are.)
I recognize that if such ‘facts’ exist, oversight arguably violates executive perogative. But that gets us back to our basic conundrum. This was the point I think I articulated (perhaps clumsily) in my email to John.
At the very least, I feel the President was unwise in this course of action. Objectively, it seems highly likely he broke the letter of the law, (especially based on today’s revelations of complicity by telcom co’s.) though I’m not prepared to say he broke the spirit absent evidence that ‘non-terrorists’ have been in fact monitored. That does not excuse him from some form of culpability.
If this incident, combined with Padilla, Hamdi, Hamdan, the recent revelations about FBI surveilance of non-al Qaega orgs and the Uighur cases give the appearance of a power grab, with the substance being otherwise, I think the responsibility is with the President (and/or his legal advisors, who have done us all a disservice, I think.)
Moreover, I think the administration is being, at best, disengenous about the neccesity of these measures, as some of their other actions allow the appearance (at the least) of a lack of serious devotion to the issue of nat’l security.
In the end, though, I think the ‘impeachment’ rhetoric is overheated (though, to my sensibilities, this is a far worse offense then Clinton’s mendacity re: Lewinsky. But that ‘impeachment’ was pure political farce, and should be viewed as an outlier rather than precedent.) Absent egregious facts, a la political spying such as Watergate, impeachment here is not warranted. But reasonably full disclosure is absolutely neccesary.
Pooh
Al,
Forgot to mention that I wish to commend you on your willingness to attempt to be an objective observer on this. It does you great credit to be able to rise above interest and admit fault. If only more would do thus…
Note to others, the ability to admit error when you are
Pooh
er that should read “the ability to admit error when you are in error strenghthens your case when you are not.
Baron Elmo
Wow… it’s simply amazing how many ideas can be exchanged and much information can be dealt with in a thread concerning Bush — when Darrell and MacBuckets sit it out, that is.
It’s a Festivus miracle!
searp
It seems to me that it is entirely likely that this program thoroughly abused our constitutional rights. That is one important benefit of secrecy.
I can only hope that some sort of post-facto oversight will bring authoritative characterizations to the public. This needs sunshine, regardless of what the President thinks.
Personally, I think he deliberately violated the law. I don’t think he has ever cared about civil liberties – he sees his job as protecting us, not protecting our liberties.
Paddy O'Shea
Front page Miami Herald:
Congress May Prevail On War Power
“It is not debatable whether the president can order electronic eavesdropping once Congress has passed a law making it criminal to do so,” asserts Ratner. “It is impeachable. The fact that we are sitting in 21st century America debating the issue of presidential power is ridiculous to me.”
http://www.miami.com/mld/miamiherald/news/front/13484000.htm
demimondian
Paddy, look. I’m no fan of our current President or of the war in Iraq, but even I understand that the War Powers Act is facially unconstitutional.
The Congress can declare war, and, a fortiori, peace. That latter power has never been used, but it is meant as the the counterbalance to the President’s power as Commander in Chief. While a state of war exists, the President’s war powers are unlimited as far as conflict is concerned, and are greatly expanded as far as domestic issues are concerned.
If the Congress wishes to limit those powers, then the Representatives and Senators need to grow enough spine to declare the absence of a state of conflict. The President would have no power over such a declaration, and would be forced to comply. The War Powers Act is an attempt to get around the requirement to do something which would be politically unpopular (override the Executive explicitly) while still getting the benefits. No Court will ever let that stand when there’s a Constitutionally specified approach to the same goal.
jg
Data mining is simply about sifting through volumes of bits looking for unique values. None of the data is flagged for its context, just its existence. Data without context is just data, its not information. (This is why programmers and people who design data stores don’t get along).
Flagging the word ‘bomb’ will get you lots of data. Looking at the data in context will give you information. ‘I’m making a pipe bomb.’ ‘That party was the bomb.’
Some people seem to be fo the opinion that Bush should only have to get a warrant if the flagging of the word ‘bomb’ led to the first hit but not but not the second and the talker was a US citizen. Problem is the law says both require a warrant.
Bob In Pacifica
Look, John Cole here is pretty much stating the reality of the spy scene today. There are enormous data-sucking means in legitimate private hands, much less what is in the government’s hands. It’s been a long time since I cracked open PUZZLE PALACE but I think that was the book describing the “Jew Room,” where the NSA allowed MI5 under a treaty to use their equipment to snoop on Americans (mostly liberal Jews, thus the name), who then reported what they found back to the NSA.
And while the most recent round of NSA revelations can be hung around Bush’s neck, every intelligence-gathering agency and every bureaucrat in each agency has an agenda. Imagine a whole league of anally-retentive little J. Edgars, gathering up information. If it’s legal, they’ll push the limits of the law. If it’s illegal, maybe they’ll privatize the operation, or give the work to an ally who’ll feed the information back to them, or just go ahead and do it.
And don’t think that gathering information is all that happens. You can destroy someone with information you have on him. No one is an angel. Anyone can be destroyed.
Our government doesn’t need neighborhood snitches like Castro employs.
In post-WWII America there has been warfare between intelligence agencies jockeying for power. The most advertised one was between the CIA (deemed “liberal”) and military intelligence (deemed “conservative”). And while Hoover’s FBI tended to lean towards the military, it had plenty of connections within the CIA. In fact, the whole intelligence community is so incestuous that it’s not only hard to define the current status of any interagency struggle, it’s hard to determine who’s on what side.
One could say that the CIA was the Bush Family Agency, aligned with Big Oil and the Nazi Residua (the Nazi Eastern Front spy ring, the Gehlen Org, provided 20% of the CIA personnel immediately after the war). Military intelligence was certainly tied in with the Japanese and Korean reactionary intelligence circles, and things like the World Anti-Communist League. The relationship between Big Oil and the military has strengthened over the years, which may explain why the current Bush seems more connected to military intelligence than the CIA.
How much Bush has alienated himself from the CIA is debatable, but I would guess that at some level there are some really pissed people there, and it’s not all from the Plame Affair. The CIA is being devalued under the latest intelligence reorganization.
I would also suggest that some of the Bush-PNAC goals are so far from the reality of the Middle East, and the results of that unreality have been so damaging to the U.S. generally and the military specifically, that there are elements ready to at least neuter Dubya’s adventurist tendencies for the next three years.
Shadowplay.
Paddy O'Shea
Sorry Demi, but I will not walk down that particular garden path with you.
Here’s how Barron’s Magazine put it in the article entitled “Congress Should Consider Impeachment:”
It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his precessors signed into law.”
Bush broke the law. The Senate is going to hold hearings, and even some Republicans are asking for them. And it is going to be very interesting to see who exactly it was Snoop George was spying on.
http://www.huffingtonpost.com/2005/12/14/24/barrons-congre_n_12841.html
Paddy O'Shea
Argh.
http://www.huffingtonpost.com/2005/12/24/barrons-congre_n_12841.html
While you’re at it, read this article as well:
Top 12 Myths & Falsehoods On The Bush Administration’s Spying Scandal
(Kind of amusing to see how many of these canards have been posted here as if they actually meant something.)
http://mediamatters.org/items/200512240002
chef
“The Bush-PNAC goals are so far from the reality of the Middle East, and the results of that unreality have been so damaging to the U.S. generally and the military specifically, that there are elements ready to at least neuter Dubya’s adventurist tendencies for the next three years.”
Dead accurate. And one CAN hope.
skip
“I’m an old intelligence guy and also a computer security theoretician, this is kind of my business.)”
Ah, the old Indian Rope Trick, into “what I know that refutes you utterly,” but I dare not reveal it to the rancid masses. The Eugene Rostow technique– so “useful” to discourse.
I suspect it works too, as least in bars. But the net is a mighty sifter and winnower, and there just might be someone lurking out there who knows as much or more about this than you do.
Raise and call.
Jim Rockford
Pretty much everyone here has got it all wrong. John Cole in particular you missed the big point.
Al Qaeda since 9/11 has gone against the best of the anti-terrorism best and won EVERY time: London, Madrid, New Delhi, Amman, Sharm El Sheik, Tunisia, Istanbul. Along with massive operations that achieved victory against second-stringers: Beslan, Bali, Jakarta, etc.
Al Qaeda LOST against us post-9/11 despite their best attempts: the Lodi Cell, the LA Plots, the Lackawanna 6, Iyman Farris (Brooklyn Bridge Bomber), the Northern Virginia Jihadis, etc. Why?
Because the data-mining and massive intercepts of phone, VOIP, IM, e-mail, and other telecom traffic enabled the Bush Admin to find out who was who in Al Qaeda, and move against their plots.
This revelation in the NYT will get lots of Americans killed, it’s analogous to the NYT printing in 1943 during the height of the Battle of the Atlantic that the Allies could read the Nazi codes. Bush’s actions WORKED because Al Qaeda could not conceive of how Bush could use men, money, and technology to identify them out of a faceless mass when their other adversaries, the Brits, Indians, Turks, Jordanians, Spaniards, and Tunisians could not find them.
Dems and the Media are arguing that it’s better to have lots of 9/11’s and have thousands or even millions of Americans dead (by nuclear attacks) than impinge on the civil liberties of Al Qaeda terrorists. That’s the definition of insanity.
Particularly since Dems and the private sector are invading people’s privacy with Orwellian schemes at the local level: red light cameras, and Oregon’s decision to require all cars to have GPS locators to monitor 24/7 private motorists locations, speed, and other driving behavior. Credit Card companies and credit reporters will sell your most intimate details for a price, and have, to identity thieves with no oversight.
DOES the President (in a time of war, bin Laden Declared War on us in 1996) have the authority to construct massive data mining to find anomalous patterns of communication indicative of terrorist operations? I’d say a resounding YES. If for no other reason that it’s the only proven way to prevent terrorist attacks.
Consider Iyman Farris, the US citizen and prospective mass murderer and Brooklyn Bridge Bomber. He used throw-away prepaid cell phones to call up Khalid Sheik Mohammed, the 9/11 Architect, for advice on how to blow up the Brooklyn Bridge and kill the most people. At the time the NSA intercepted the calls, no one knew who he was or his connections to Al Qaeda. All they had was a rotating series of cell phone intercepts with a different number each time that had no identity attached to it (paid with cash), and the #3 Al Qaeda leader at the time on the other end. UNDER FISA there is no way to get the warrant because the person and phone cannot be specified.
[Al Qaeda THOUGHT their comms were secure, now they know it’s not, and yes people will die because of this. Perhaps even you or someone you know. Perhaps a member of your family or a friend.]
Dems and the Media are arguing that it’s better to lose the Brooklyn Bridge and thousands or tens of thousands of lives than impinge on the constitutional protections of Iyman Farris to conspire with Al Qaeda’s #3 to kill thousands of Americans. That’s a loser politically and legally I’d imagine. It also shows that Dems when you get right down to it are simply unable to fight terrorism. V for Vendetta is symptomatic of their identification with people who cut the throats of flight attendants and commit mass murder and contempt for those who fight to stop this type of atrocity. Largely out of class differences: working people die in terrorist attacks and rich people would rather just write a check to make the bad men go away and find them “authentic” ala Terrorist Chic. Tookie Williams is a good proxy.
The proper framework is to enable the government to use tools that WORK, but provide oversight and remedies for people who have tangential and innocent connections to Al Qaeda terrorists and want to be removed from watch-lists and the like. Unfortunately Dems have adopted an overtly pro-Terrorist agenda since they are unable to provide ANY means to fight them, only rigid process elevating terrorist rights over public safety of working people.
chef
Jim Rockford’s assertions ignore the fact the the NSA leakers sought out the NYT, not the other way around. That is to say, people more in the know than he or we–people with appreciation of the true efficacy of the domestic spying program–judged it in the best interest of the Agency to out the lawbreakers The leakers deemed the the ancillary damage a price worth paying. Unless Jim Rockford is really Bobby Inman, I am inclined to believe the leakers.
On a more mundane level, one suspects these were career employees who resisted ominous changes in the Agency’s modus operandi— and the violation of an NSA’s prime directive.
Dropping another level, it is well known that this administration has worked to bring the intel community to heel (witness Cheney’s multiple visits to Langley). NSA Director Hayden chose to sacrifice the integrity of the NSA for that additional star and that new job in the inner circle. It is really that simple, and we see it happen every day in organizations big and small.
Finally, the assertion that “dems have adopted a pro-terrorist agenda” is unworthy of this blog. Tip: There are plenty of red-meat sites elsewhere where nonsense like this will be greeted with loud applause and thumping jackboots. Find one.