The 1984-ing of America
By TPPB Posted in User Blogs — Comments (26) / Email this page » / Leave a comment »
Bush Lets U.S. Spy on Callers Without Courts is a very misleading headline. It gives the impression that U.S. intelligence agencies are listening in on every phone call you make, that they're recording your conversation asking your spouse to pick up some milk on the way home from work.
In fact, this piece in The New York Times reports that:
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
This report will surely drive civil liberties organizations such as the ACLU bonkers. Expect a law suit any minute now.
But before the rational among us are swayed by the overzealous, let's look at the facts as reported by the NYT.
The numbers:
While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.
I don't know about you, but I feel safer knowing that the U.S. government is monitoring leads on potential terrorists both at home and abroad. But if that bothers you, how about this:
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
So the leads gathered by the N.S.A.'s activities have actually prevented terrorist attacks in U.S. How did this all begin?:
What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
So the N.S.A. actually decided that it was acceptable to look into people that were tied, even indirectly, to al Qaeda operatives captured by the C.I.A.? How dare they! More:
Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.
The report goes on to explain that a warrant is necessary to monitor a phone call from someone in New York to, say, someone in California.
So it seems the N.S.A. took action after 9/11 that preemtively searched for terrorists before they decided to fly airplanes into builds...again. The NYT report even acknowledges criticism of the N.S.A. from the 9/11 Commission (the liberal gold stamp, by way) of the agency prior to 9/11:
After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law.
"Damned if you do, and damned if you don't" seems to fit this situation well. Intelligence agencies, the C.I.A. in particular, have come under fire post 9/11 for not being able to prevent the most devastating attack on U.S. soil. But at the same time, an intelligence agency takes action, which as far as I can tell adheres to U.S. law, albeit very closely, to protect U.S. citizens from terrorism and it is painted as a violator of civil liberties. Does this make any sense?
Much like the debate over coercive interrogation, this report is sure to raise the fundamental question of how far the U.S. government is allowed to go to protect our way of life. And should the Bush administration really be demonized for doing what it deemed necessary after 9/11 to protect the American people?
After reading this report from the NYT, I believe that the actions taken were absolutely justified. Despite the facts, I am sure that this will not stop the rabid left from portraying this as yet another "example" of the 1984-ing of America by the Bush administration.
I believe that there is utility in keeping this debate on the front burner. Most of us understand that in looking the other way on these sorts of things, we are making a pact with the devil. Such deals always have to be monitored very closely.
Nobody wants to see a dozen suicide bombers hit the trains at rush hour, so we give the government some leeway to listen in on people who call places like Afghanistan. The case of Jose Padilla, essentially 'disappeared' in the manner of a Chilean dissident under Pinochet, is a little scarier. But again, most of us assume that the government is acting in good faith, and so Mr. Padilla rots.
In an ideal world, this sort of thing would not only be unnecessary, it would be indicative of a government that is in serious need of restraint. But this isn't an ideal world, so we have a dilemma.
We have all seen how the "boiling frog" phenomenon can, over time, make the most outrageous things seem acceptable. Here is the head of one of our major political parties saying essentially, "We can't win this war. Let's surrender and get it over with." This while troops are in the field being shot at.
There was a time – and it wasn't so long ago – when someone who did that would have been booed off the stage, condemned in the strongest possible terms, and hurled into the pit by his own party. The issue isn't whether he's right or wrong, for he is predicting the future. No one knows whether he's right or wrong, including him. The issue is that he's helping to make it come true by the very act of saying it.
But as a people we have become so inured to the ever-more-outrageous claims of the antiwar left that now Howard Dean can say this and it's just another partisan Democrat doing what Democrats do. Do his statements contribute to the likelihood that we might actually lose? Of course they do. But most people don't care anymore. It's just another day in Democratland.
And this is precisely the danger with these invasive techniques for hunting down the "terrorists." We have all seen how this works in the "war on drugs." Sure, there have been plenty of drug dealers apprehended. But there have also been an alarming number of innocents shot to death in their own beds by overzealous gendarmes who smashed their way into the wrong house.
Let's be clear that nothing can be done by human beings in any sort of quantity without producing some number of mistakes. So the more potential terrorists who get disappeared, the more likely it is that some of them were quite ordinary people who won a free trip to Kafkaland.
So I think this is a place where we should let the fanatics play their role in history. Yes, we can assume that most times they are calling wolf. But let's not lose sight of the fact that there do exist wolves.
So the N.S.A. actually decided that it was acceptable to look into people that were tied, even indirectly, to al Qaeda operatives captured by the C.I.A.? How dare they!
Why do they need to do so without a warrant? Without even a secret warrant under the USA Patriot Act? Why no oversight? I'm all for breaking down walls, the NSA should go ahead and follow leads wherever they take them. But the ends do not justify the means. There is no reason they have to act completely independently of the juduciary, the legislature, the Justice department, and the 4th amendment.
NSA isn't part of the judiciary, the legislature, or the Justice department it's kind of hard to see where you're going here.
Without a warrant there can't be a prosecution so it seems to me a case of no harm no foul.
With my emails or phone calls being monitored as long as nothing improper is done with the information. As long as the information isn't acted upon or disseminated so long as it isn't terrorism related, I have no problem with this at all. Where is the loss of liberty?
I have even less problem with the government checking to see what I have checked out from the library. As long as terrorism is the only thing they are looking for, I am fine with it.
The point that information learned from these intercepts helped prevent terrorist attacks would make a great argument... but not for this executive order.
The executive order isn`t that the NSA gets authorized to do these intercepts. The NSA has been authorized to do that its entire existance. Listening in is what the NSA does! (That and making sure people don`t listen to US goverment communications)
The point is that the NSA no longer needs a FISA warrant when listening in on the conversations of Americans! It didn`t even need to know who it was listening to, any phone number, suspect for whatever reason, would do. The story is that this is due to a presidential order based on a weird legal opinion that seems to say that the president doesn`t have to follow the US constitution... You may trust some presidents with that power but I would rather have that none have power like that.
Until 2002 the NSA needed a FISA warrant. These arent like the normal warrants that allow the police to search your house if they have probable couse. They are granted by a special secret federal court, require evidence of very little, are almost always granted and may only take hours to get approved. Is getting these so much to ask? I dont think so becouse the need for these warrents prevents my home from getting secretly searched whenever a fed feels like it. But if you worry about a couple of hours when starting interception, you should have a much much bigger worries. Just think about translation!
How is the NSA doing in getting the translators needed to translate intercepted comunications in time? Remember the 9/11 intercepts that were translated a day to late to help? A warrant allowing the interception of more would not have helped here at all.
When the president secretly abandons the need for warrants conservatives should take notice. The order may be signed with the intention of fighting terrorist, but who makes sure that the people doing the actual intercepts and future politicians stick to just that? Who is to stop the people within the NSA from intercepting you and me becouse they feel like it? Who is to stop future Presidents from spying on their opponents, it heaponed before, and John Bolton recently did it again. There is a reason the consitution doesn`t allow this stuff.
With FISA there is minimal protection from unreasonable search and seisure (The FISA court can also authorize secret searches and bugging), but at least there is a judge that knows who the target is.
You may think that as long as warrants are needed to search your home you will be OK. But remember that the NSA also does economic intelligence. What heapons if the NSA start to spy on their smaller competing US busineses?
Make sure its turned up on high too. I also am in agreement with your desire to see this in healthy debate. However, its seems to be over politicized in its current cycle.
But, as far as the devilish pact is concerned, what is the moral standpoint of espionage? Information and deeds done in darkness will eventually be exposed. Yet at times, performing such in the dark is preferable. Is there a moral justification for that? And can we adhere to a high ground that allows for institutional ventures beyond the overt boundaries of government?
The water is so muddy now for the liberal, who apparently views such incursions as a violation of basic human rights, and not just the rights of the American citizen. However, is their a moral justification for a bit of big brother? Is not the justification the state of war? But as you rightly state, some designations of war are not wars (war on drugs) and other wars (GWOT) are not perceived as wars by certain political philosophies. This is the clear part of the debate, and why we need the heat on.
If we intend on defeating an enemy who has declared war upon us, we can expect to loose some of the privilege afforded us in peace. Yet a portion of our population does not intend victory, and views the conflict as less of a war and more of a failed foreign policy. I flamed away on this ealier today.
Must agree with you heartily, keep this in the front! And remember, wolves predominantly keep the herd of sheep healthy. Killing off the diseased and weak for the most part.
The NSA is now funding research not only in cryptography, but in all areas of advanced mathematics. If you'd like a circular describing these new research opportunities, just pick up your phone, call your mother, and ask for one.
(1) If the plain meaning of the statute is clear, use the plain meaning. And then stop. Really.
Amendment IV: "...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, adn the persons or things to be searched."
Look, there are times for balancing like O'Connor when competing interests are involved, and there are times for Scalia rules. I agree with him in Hamdi v. U.S., if we're going to eviscerate civil liberties, you dang well need to do it out in the open. Things are either unconstitutional or they aren't, there's no sorta unconstitutional category. This amendment covers citizens, and while I'm sure there are bad citizens out there, you need to get them through proper process. If we don't want warrants anymore, fine, put amendment XXVIII out there to repeal the 4th and convince 3/4 of the states it should go. Otherwise, obey the Constitution. You know, that thing you took an oath to preserve.
constitutional issue. The parameters of permissible wiretaps is in federal statute. Read it. Like the part that exempts federal agents acting under color of authority or the part that gives the Attorney General the right to allow them, all without warrants, then return to your "First Rule."
There are revenue generation opportunities there as well. For example, if you mention that you should probably go grocery shopping, a driver with a pizza is immediately dispatched to your house.
Google's already working on it. ;-)
Watch out. I typed "pizza sausage pepperoni mushroom" into Google once, and I got 1 - 10 of about 284,000 sausage pepperoni mushroom pizzas in 0.36 seconds.
So if you do it, be sure to type in "beer" as well.
This is another legal issue not yet addressed here. Rigorous intelligence oversight programs were established beginning in the mid 1970's after widespread disgust over domestic collections against Vietnam War protestors and civil rights activists. Ford issued the first executive order, Carter another, and Reagan's Executive Order 12333 along with Department of Defense Directive 5240.1 and various service regulations form the basis for current policy.
To sum it up...intelligence collectors must obey U.S. law, they must take special care not to collect on U.S. persons (who are specifically defined), and they must be authorized for the collections they're performing. They can collect information on a U.S. person for a background investigation, but that's with their consent. Information gathered during collection activities that unavoidably gather large volumes of data such as imagery and intercepts must be reviewed and not retained past a set time limit if it pertains to U.S. persons.
So...there's not just the law at work here, but a body of regulation put in place in hopes of preventing these sorts of controversies. I leave it to the readership to check out the links above and decide if there's enough wiggle room to permit the activities that have been in the news. Personally, I'm skeptical that they're permissable.
With Google about to "partner with" AOL, here's what's coming next: you'll send your buddy an IM about feeling hungry. Google knows from your email and IM history that you like pizza. Up pops another IM window from the local Domino's.
And if they don't deliver it within 0.36 seconds, it's FREE, LOL!
to be able to talk to known terrorists overseas without anyone knowing?
If you are arguing in good faith, at least be clear.
The NSA was gathering sepcific information as directed between domestic and international communications when the international side was known to be or believed to be involved with terrorists.
I'm glad you at least quoted it correctly, not omitting the words 'essential' and 'temporary,' You seem to have a peculiar definition of essential, though, as hunter points out.
error in which a right to privacy is confused with a right to anonymity.
discolsed and reported to properly.
The thing that is out of control is that the poltroons are winning.
Thanks for posting them.
It seems that it is clear from the DOD procedure that time of war and direction of President makes collecting international intel from people within the US is OK. As to the Reagan era order, it is not as clear, but definitely does not prohibit the gathering of intel from Americans engaged in speaking to foreign intel targets.
Another way I look at this, and when I do it infuriates me at the cynical disregard of defeatocrats, is to ask the question:
If a foreign intel target decides to start speaking to someone in the US, should we stop gathering info on them while they do it?
Neither of the docs you site take into account the age of e-mail and cell phones, with near instant communication. Should we ask the terrorists to use snail mail and fixed phones in the future so as to make it convenient to the judges to preapprove every gathering op?
We now have an Al Qaeda bill of rights that makes the behavior of the typical DI illegal. That was to make McCain feel good. Now, in reaction to the NYT's promotion of its reporter's book, should we abandon lawful and effective intel operations and let the terrorists know that all they have to do is involve Americans in their communications to be safe from observation?
If so, I want out of this country.
I'd suggest that if, as you point out, the current legal basis doesn't reflect changes in technology, the President issue an updated Executive Order codifying conduct in relation to new media. Knowing the rules protects both collectors and collectees.
If so, I want out of this country.
So...where would you go?
It seems that the President did update, consulting proper legal authority, and disclosing to memebrs of Congress. This was not an irresponsible, unilateral effort. The NYT simply has a book to sell, and Schumer has a nation to wreck.
Neither of them give a rat's rear end about our safety or liberty.
As to nations, I think a low key country, far out of the way, where a social compact and rational discourse still takes place in a civil fashion would fit the bill.
New Zeland comes to mind. It is far from China or Islam, and they are still willing to do things that actually rationally make sense.
I have to say that I find this whole thing more than a little disturbing. The President seemingly bypassed the law and Congress by not staying within the boundaries of FISA. The President essentially has no statutory authority (the Afghanistan Resolution and the Constitution do not give him such authority) to engage in eavesdropping without notification after 3 days or without a warrant. If these parameters were not adequate, he could have gone to Congress. The fact that he did not both baffles and disturbs me. The issue here is executive over reach.
As one of many who has nothing to hide, go ahead and listen to my phone calls and e-mails. Better have a cup of Java!
I know, I know, it's the principle. But you know what... in these times, the principle is not priority number one. Our safety is. Look we didn't ask to be drug into this maelstrom, but we are here now. If we want to live safely, we must give up some freedom.
"They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty."
I feel that what Franklin said 200 years ago, still stands today. And we must be very careful when dealing with this issue.