Monday, December 19, 2005

Domestic Spying: 'The Rest of the Story'

The most novel, troublesome, and ultimately the scariest possibility is inspired by, of all things, something once said by Florida's popular, middle-of-the-road former U.S. Senator Bob Graham.
Most newspapers and blogs, including this one, spent the weekend worrying over the constitutional implications of George W. Bush's admission that he has authorized in the past, and intends to continue approving in the future, warrantless wiretapping and other surveillance of American citizens. At the same time, a few others were a step ahead, asking a question that has no answer as yet:

That is to say, why would Bush insist, in effect, that he has the unfettered power of a Russian dictator or a divine-right king to wiretap, search, and seize any and every American's telephone conversations, email messages, and for that matter the personal effects of any American without a court-ordered warrant before, or even after, the fact?

Why would he do that when, as several sources have pointed out, current law allows the administration easy, quick, and even post hoc access to judicial warrants where necessary to protect the public safety?

On the surface, it "makes no sense", as points out:
The idea that the Bush Administration needed to bypass the courts to get wiretaps quickly makes no sense; under the current system, you can start eavesdropping, and get a warrant later. The notion that disclosing the surveillance would somehow tip off potential terrorists is laughable, too; Al Qaeda types know they're being monitored.
Separately, John Marshall, and Laura Rozen, and Dave Sirotta, and Brad DeLong agree.
  • Marshall raises the question this way:
    Wiretaps are conducted around the country every day. The FISA [Foreign Intelligence Surveillance] Court alone approves something like a half a dozen a day in highly classified national security or espionage related cases.

    The only issue here is why the president decided to go around the normal rules that govern such surveillance, why he chose to make himself above the law.
  • Rozen refers to a CIA trained source who confirms that getting a judicial warrant from the FISA court is no big deal, so "what was the point in avoiding the courts? Just like many of the administration's more shady decisions, the risk-reward here was all screwy... ."

  • Sirota frames the issue as a question and answer:
    [W]hy would the President deliberately circumvent a court that was already wholly inclined to grant him domestic surveillance warrants? The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so "unreasonable" that even a FISA court would not have granted them.
  • Brad DeLong raises the same issue succinctly, even as he, too, hints at an answer: "What have they done that they did not believe the FISA court would approve?"
Larry Johnson, another ex-CIA agent now working as a Washington consultant, suggests that a more specific answer to the above questions may be entwined with the failed John Bolton nomination. This isn't as far-fetched as it may seem, once you read the public Senate committee transcript of the Bolton hearings on his nomination to become U.N. ambassador. The hearings blew up when the White House refused to release any of the 10,000 names on a National Security Agency list of people whose private conversation transcriptss had been slipped by someone to Bolton for his reading pleasure.

Scott Rosen of The Politics Blog looks at Karl Rove's "long record of very dirty tricks" and the White House exposure of "Valerie Plame as a covert CIA agent" for purely political reasons. He concludes, as Johnson does, "that [Bush] can not be trusted to limit such spying to persons demonstrably involved in extremist Islamic and other terrorist activities... ."

The most novel, and ultimately the scariest, possibility is inspired by, of all people, Florida's popular, middle-of-the-road former U.S. Senator Bob Graham. As Noah Shackman's explains:
I'm guessing -- and this is just a guess -- that the real difference is in the technology of the wiretaps themselves.

Look at what former senator Bob Graham (D-Fla.), who was briefed on the eavesdropping program, told the Washington Post:
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches.
Or what New York Times editor Bill Keller had to say about the paper's year-long delay in breaking the story:
In the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.
So maybe the NSA wiretaps were using a new kind of capability; one that terror suspects might not have know about; one that might have even made the FISA court uncomfortable, somehow.
And what "capability" would that be? Seeing the Forest has the likely answer: The administration has adapted the N.S.A's preexisting foreign intelligence system, known as Echelon, to domestic purposes. In other words, the Bush administration "is spying on all of us."

All of us. Teachers, journalists, housewives, students, construction workers, retirees, etc. etc. etc. As Forest explained yesterday:
After 9/11 Bush tasked the NSA with turning its glare on the U.S. What that means is that every single e-mail and phone conversation goes into their computers and is scanned for certain magic words and phrases. Anything that is flagged by the computers gets a closer look.

That is why they're doing it without warrants. You can't get a warrant for every single person in the country, and that is who they are listening to. But they wanted to do it "to protect us" so they just went ahead.

Here's the problem.

To do this you have to set up the means to do it. Billions in equipment to grab the calls and e-mails - satellites and connections into major network router hubs, billions more in computers to scan and analyze all those words... NSA has had that all in place for grabbing everything outside the U.S. but because it is illegal and expensive it wasn't the kind of thing you could get away with setting up here. That much money just wouldn't be available, and word would get out because there would be no reason to be setting up that kind of capability here. Until 9/11.

Here's the other problem: It's in place now. While it is a huge task to set up the technical capability it's not hard at all to tell the computers to scan for ... other words and phrases than the original targets. You're looking for "bomb" but maybe you also want to look for "Democratic Party strategy meeting." You start out looking for terorists but it's not hard to tell it to get everything from ... other people. Like Senators or CEOs or leaders of organzations opposing Republican policies or anyone else The Party wants to get something on.
In other words, Mr. Bush has unconstitutionally arrogated to himself, alone, the power to conduct domestic surveillance of American citizens because it's technologically easier to spy on all of us.

Is that a valid excuse for violating the U.S. Constitution? No more than it would be valid to excuse your local mayor if he ordered the police to make warrantless entry into every house in town for daily bed-checks to prevent crime.

The momentous issue raised by Bush's confession that he is conducting warrantless eavesdropping on American citizens, free from any judicial review, is not whether the threat of terrorism requires some flexibility in the bulwarks of individual liberty. No one disputes that wiretapping can be lawful and effective. It is whether we should abide having the decision whether and who to wiretap made by the president alone.

As Yale law professor Neal Katyal explained to the Senate Judiciary Committee two months after 9-11, when it was considering legislation to allow Government monitoring and recording of attorney-client jail conversations where the client is a suspected terrorist:
"Throughout history, there have been times when this country has had to dispense with civil trials, with other protections in the Bill of Rights, and with the rules of evidence. Those circumstances have been rare, carefully circumscribed, and never unilaterally defined by a single person. A tremendous danger exists if the power is left in one individual to put aside our constitutional traditions and protections when he decides the nation is in a time of crisis."
[emphasis added]
What Mr. Bush has confessed to doing has not make us safer. Instead, it undermines a fundamental and abiding democratic principle of America itself. The "rest of the story" is what "we the people" will do about it.

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