Monday, January 30, 2006

NSA data-mining: beyond the politics 

Philip Bobbitt, professor of law at the University of Texas and author of The Shield of Achilles: War, Peace, and the Course of History -- a book for which the descriptor "magisterial" was invented -- explains "Why We Listen" in today's New York Times. Bobbitt comes as close as possible, I think, to nailing my own view of the NSA "eavesdropping" program. Only to get you to read the whole thing, here's a fair use excerpt (commentary below):
In the debate over whether the National Security Agency's eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest.

Owing to the globalization of telecommunications, many telephone calls between parties in foreign countries or with an American at one end are routed through American networks. By analyzing this traffic, the National Security Agency has been gathering clues to possible terrorist activities.

The agency was authorized by the president, we are told, to intercept messages if one of its supervisors believed there was a link to Al Qaeda — rather than requiring the usual statutory showing before a special court of probable involvement in terrorist activity when one party to the exchange is a "U.S. person" (a person in America or at an American corporation abroad). This would appear contrary to the provisions of the surveillance act.

The N.S.A. is our most important intelligence agency. Typically, about 60 percent of the president's daily brief comes from its intercepts. But the agency was created during the cold war to collect against enemy countries, and that war, indeed that kind of war, has now been superseded. Signals intelligence in the 20th century meant intercepting analog signals along dedicated voice channels, connecting two discrete and known target points. In the 21st century, communications are mostly digital, carry billions of bits of data, are dynamically routed in packets to be reassembled and are globally networked....

If we agree that the National Security Agency now needs to trace and analyze large volumes of phone and Internet traffic looking for particular patterns and to cross-reference leads, then it seems clear that traditional, specific warrants may sometimes not be appropriate.

Furthermore, not only are there presumably conspirators within the United States, but conversations between two foreign persons could be routed, via the Internet, through American switches to give the appearance of a domestic-to-international connection. It is difficult to imagine getting warrants now in such situations, because the standard of probable cause to conclude that the target is a terrorist cannot be met....

This is not to play down the damage done to our war aims by the executive branch's repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting. Having said that, we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function.



Bobbitt is not only right that FISA needs revision in light of the technology, but it also needs revision in light of the threat (I appreciate that the Bush administration's legal arguments may stand up in the inevitable litigation that will contest them, but nobody should prefer that domestic surviellance hang on the commander-in-chief power). FISA was enacted in the static Cold War in the wake of Nixon's paranoid surveillance of activist groups and others who opposed him. At the time, the concern was that the federal government would use the threat of Soviet espionage as an excuse to listen in on the telephone conversations of people that it considered subversive, whether or not they were merely exercizing their rights under the Constitution. Spycatching is a deliberate process that requires the precise gathering of evidence that will usually be used in a criminal prosecution. Why not get a warrant? There is almost always plenty of time, and it guarantees that the evidence won't be chucked out in the prosecution under the exclusionary rule (the best guarantee against unchecked warrantless searches, I might add).

Today's task -- the interdiction of terrorists -- is an entirely different problem. Very often, no crime (other than perhaps conspiracy or some infraction of immigration law) has occurred. The purpose of the current program is to stop an attack. Evidence need not be perfect, or even rise to the level of "probable cause" necessary to get a warrant. We just need to disrupt the enemy's operation. That is -- essentially -- a military operation, whether or not it involves a "U.S. person" as defined in FISA. Yes, that is the harsh reality of today's world: the jihad is forcing us to conduct military operations on our own soil, just as the Confederacy did 145 years ago. Get used to it.

Now, a word on the politics. Whether or not Bobbitt's final charge -- that Bush "secretly" decided that FISA's application was unconstitutional and did explain why -- is fair, it is certainly true that the Bush administration has not fought for the modernization of the FISA that by its actions it obvious thinks is necessary. Or if it has, it has not done so forcefully enough for me to have been conscious of it, and I pay a lot more attention to such things than most voters. So in addition to creating yet another needless "Bush lied" kerfuffle, it hasn't done a good job of educating Americans about the difference between the new threat and the old challenge of Cold War espionage. It needs to do that very clearly. Perhaps it will do so in tomorrow's State of the Union address. I certainly hope so.

If I were a Democrat with national aspirations, I would denounce Bush both for disrespecting the law and failing to "come clean with the American people" about the threat we face, and then demand that the FISA be amended to permit the analysis of digital signals, domestic or foreign, that suggest jihadi activity without a warrant. It will be interesting to see whether any Democrat has the stones required to do that.


By Blogger Screwy Hoolie, at Mon Jan 30, 08:59:00 AM:

This comment has been removed because it linked to malicious content. Learn more.  

By Anonymous Davod, at Mon Jan 30, 09:32:00 AM:

The writer of the article writes of the President

" but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting."

What utter drivel. The comment defies rational explanation. Does the writer have a wire into the President's brain. Maybe the writer has seen written documentation from the White House showing the President acknowledging what was authorised was unconstitional.

What was a reasonable article turns into diatribe.  

By Anonymous Confederate Yankee, at Mon Jan 30, 09:37:00 AM:

But Screwy, they aren't using data mining, nor keyword searches, nor even what any of us would recognize as a traditional wiretap. General Hayden, the NSA boss who initiated the program, said exactly that, directly and without any equivocation, one week ago today in a speech followed by a Q & A at the National Press Club.

The media did not let the mere fact that they don't know what Bush's E.O. authorized went ahead and created a picture of what they thought the program was, in an attempt to sell their stories. The unspoken, unvarnished truth is that none of the media sources and "experts" so boldly holding forth on the subject do not know what the Executive order entailed.

Even James Risen's sources, which have committed felonies, I hasten to add, were not in a position to have direct access to the program discussed. Everything the media thinks it knows is based on hearsay evidence and blind speculation.

DO you ever wonder why President Bush is always in such good spirits when discussing this subject? Look at the chronology of this story, and you'll see that the White House did not want this story leaked and was initially very upset, but once it went to press, they have been almost jovial.

There are only two logical explanations for this behavior that I can think of.

The first is the liberal view, which states King George is so arrogant that he is committing an impeachable offense and simply doesn’t care what the Congress or the Constitution thinks.

The other, more logical view is this: despite all the bluster, the media is reporting the sound of a tree falling in a forest. They aren’t even in the right forest. Risen’s sources were wrong on the contents of Bush’s executive order, and Bush has been letting the media wander farther and farther afield, giggling all the while.

Here is the dark and dirty secret of Bush’s executive order: he broke no laws, because laws covering the kind of foreign intelligence surveillance he ordered have not been written. I cannot believe that a law written to cover the limited technologies of 28 years ago can adequately cover existing technologies. Nor do I believe that writing a law specifically outlining what these new intercept technologies is in our national best interests, as they would tip off our enemies as to the kind of technologies we are exploiting.

Very soon, the details of the NSA program ordered by President Bush will be known to the very mouthy members of Congress who have come out so strongly against this program (without first knowing the facts, of course). I predict that you will see some very somber members emerging from chambers that day.

Truth, especially the kind of truth that shows you have been a fool, is a particularly bitter pill to swallow.  

By Blogger TigerHawk, at Mon Jan 30, 09:58:00 AM:

With a little tweaking, it is possible for both Screwy Hoolie and Confederate Yankee can be right. My own view:

1. Risen's sources broke the law and should be prosecuted.

2. I agree with Bobbitt that the FISA is entirely inadequate to the task.

3. I don't really care that Bush pushed the envelop on the legal argument -- if that is what he in fact did -- because I strongly believe that FISA was not designed for interdiction, which is the purpose of the NSA program and which is manifestly part of the war that al Qaeda declared on the United States.

4. All of this will be sorted out in litigation, which I expect the Bush administration, or its successor, to win.

5. If Bush's successor is a Democrat, I expect that he or she will defend the Bush administration's position in that litigation -- which will still be ongoing in 2009 -- whatever he or she may say during the campaign year of 2008.

6. Bush, as usual, did a bad job of explaining in advance why FISA was inadequate. The answers are (i) as Bobbitt points out, technology has changed to require that it be amended to permit data mining, and (ii) the threat has changed.

7. Apart from the usual anti-Bush emotionalism from the partisans, this particular issue trips a lot of triggers from the Nixon era. The editors of today were the college students of the early 1970s, and they have never forgiven Nixon (and they shouldn't) for his paranoic surveillance of domestic anti-war groups. Notwithstanding occasional claims that Bush has done the same thing, nobody honest thinks that the purpose of the NSA program is to crush or chill dissent. I have discussed that question previously, at length.  

By Blogger Cardinalpark, at Mon Jan 30, 10:48:00 AM:

This issue is such a disaster for the Democratic Party. They should just avoid it. TH, you're right, there should be a movement afoot to improve FISA. That movement can either ome from the Executive or it can come from Congress.

Ny the way, nobody should forget that the Congressional Intelligence Committees have been briefed here. They know what's going on and they're not shouting about the issue.

The fact that Hillary isn't touching this says quite a bit. she's going to let the Deaniac types electrocute themselves on the security rail.  

By Blogger Lanky_Bastard, at Mon Jan 30, 11:12:00 AM:

Tiger, certainly the threat has changed relative to the 1990s, but how would you compare this to past threats such as the Cold War?

Would you argue that more surveillance is warranted because this is a greater threat? That we should have had more surveillance during the Cold War? That data-mining programs are somehow less corrupt than the people running them? What is it about this junction in time that now warrants exclusive use of executive power without any congressional or judicial oversight? I really don't get it.


By Blogger TigerHawk, at Mon Jan 30, 11:22:00 AM:


It is not that the threat is greater or worse than in the Cold War, but it is different. Then, we were hunting for moles. There were many such moles on both sides, each conferring incremental advantage to their respective employer or employers, but they weren't preparing an attack. Now, we are racing against time to find people who are actively working to kill American civilians. The mission is really entirely different, and it therefore requires different tactics. It seems to me obvious that the tactics required today do not fit well within the FISA regime, if for no other reason than our objective is not a criminal prosecution (as it was in mole-hunting). Our objective today is the interdiction of enemy soldiers. The evidence that we need for interdiction need not be useful for prosecution to be useful for targeting. No finding of "probable cause" should even be necessary in the targeting of enemy soldiers.

So while the total threat during the Cold War might have been greater, at time, than in today's war, the specific threat embedded in today's war is entirely different.  

By Blogger Jack Okie, at Mon Jan 30, 06:06:00 PM:

From the analysis at Hugh Hewitt, Powerline, Captains Quarters, and others, I am convinced that the NSA program falls within the President's Article II powers, and therefore FISA or other (perhaps future) laws don't apply. The point has been made that if FISA were to attempt to limit the President's ability to monitor foreign communications in wartime, it would be unconstitutional.

Lanky, we are at war (or so many of us believe). This "warrents exclusive use of executive power without any congressional or judicial oversight", i.e., the President's Article II powers.  

By Blogger Jack Okie, at Mon Jan 30, 06:12:00 PM:

And not to sound too picky, but calling it "domestic surveillance" when one side of the call is outside the US seems a stretch.  

By Anonymous Anonymous, at Tue Jan 31, 11:36:00 AM:

" but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting."

Every Administration (Republican and Democratic) since the FISA law was enacted, have declared it to be an UnConstitional intrusion of the Legislative into Executive powers. (They have also said the same of the War Powers Act). Some secret!  

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