‘Twas the day before Christmas
And all through the Times
Hysteria reigned over
Bush’s “impeachable crimes”…
Yes, the New York Times continues to show its disregard for our nation’s security, publishing additional classified information about the NSA’s much-hyped surveillance program. Now it’s a report that the NSA program traced and analyzed huge numbers of calls to and from terrorist hotspots such as Afghanistan, not just those sent to or from suspected al Qaeda operatives:
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….
What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.
The Times quotes an expert on communications privacy who said that to exploit its technological capabilities, “the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.”
The Times does not say whether “American-based switches” refers to switches located on American soil or switches owned and operated by American companies that may be located offshore. (This lack of clarity–on both technical and legal matters–has been a hallmark of the Times’ Chicken Little journalism.) This distinction may be legally important; for reasons I discuss below, the Bush administration might have had strong reasons to favor channeling traffic through switches located outside the U.S.
Today’s New York Times article chases yesterday’s Boston Globe report that the NSA program may have intercepted all electronic communications between the U.S. and overseas. According to the Globe, the NSA program “captures reams of data from satellites, fiberoptic lines, and Internet switching stations, and then uses a computer to check for names, numbers, and words that have been identified as suspicious.”
Both the Globe article and today’s Times article appear to contradict what the Times said in its original report about the breadth of monitoring being conducted under the NSA program:
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.
Based on the latest Times and Globe reports, it now appears that the NSA has been intercepting international phone calls and e-mails to and from perhaps millions of Americans, not just a few hundred or thousand as the Times initially asserted.
Will the Times be issuing a correction?
The Times’ initial report also claimed that the NSA’s program based its surveillance decisions in substantial part on phone numbers and addresses captured from al Qaeda operatives:
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.
The latest Times and Globe articles suggest that the NSA surveillance program monitored far more phone numbers and e-mail addresses than those obtained from captured al Qaeda operatives and their associates.
What other basic facts about the NSA program did the Times get wrong?
That extra year of reporting on the story doesn’t seem to have been well spent, eh, Bill Keller?
President Bush’s critics have argued that the NSA program obviously violates FISA. The latest gotcha!-infused revelations, they will undoubtedly claim, only bolster their case.
Well, not so fast.
As an informed Power Line reader suggested yesterday in this post from Scott Johnson, a program that intercepts massive volumes of e-mails and phone calls may not violate FISA in the same way that interception of a smaller number of communications might. That’s because of the way that FISA defines electronic surveillance:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
If the NSA surveillance program tracks all international communications (or all international communications to al Qaeda hotspots such as Afghanistan), it does not target specific individuals as required by 1801(f)(1). If the communications are intercepted outside the U.S., the NSA program falls outside the definitions in 1801(f)(2) and 1801(f)(4). If the program excludes intentional capture of purely domestic communications, it falls outside the ambit of 1801(f)(3).
Bottom line: a massive surveillance system that intercepts millions or billions of international calls and e-mails may not constitute electronic survellance as defined by FISA, provided that the interception occurs outside the United States and neither specific individuals nor purely domestic calls are targeted.
Bush’s supporters and opponents can argue about whether that’s good or bad, but the law is what it is.
At some point, of course, human beings must enter the picture, i.e., to examine a small proportion of intercepted communications flagged by computers as potentially troublesome. That’s not “electronic surveillance” as defined by FISA. Nor is it a “physical search” as defined by FISA.
(A digression: is there any statutory reason why the government officials who analyze the NSA data have to be American? Couldn’t British intelligence agents be given the data; couldn’t British intelligence reports be used as the basis to request a warrant in the U.S.?)
Of course, the Bush Administration has not made such arguments, preferring instead to focus on the President’s inherent authorities as commander-in-chief and Congress’s post-9/11 resolution authorizing the use of military force. As Orin Kerr pointed out earlier this week, the decision to avoid discussing the technical details may be a tactical decision:
Some have asked me why I question whether the surveillance program violated FISA, given that Bush and Gonzales aren’t arguing it didn’t. They make the very fair argument that if the administration isn’t defending the program on that ground, the program presumably does violate FISA. This is a decent point, but I think it’s sensible to be cautious here. My thinking is that there may be strategic reasons why the administration isn’t making this argument. Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn’t want to do that in public given that the program is classified. I don’t know how likely this is, but it’s certainly possible when you’re dealing with a secretive agency like the NSA.
Anyone remember when Thomas Kean and Lee Hamilton said the Able Danger data-mining program was not “historically significant”?
Do they think so now?
I was disappointed to see Charles Krauthammer argue that Bush should have asked Congress to authorize the NSA program:
Contrary to the administration, I also believe that as a matter of political prudence and comity with Congress, Bush should have tried to get the law changed rather than circumvent it.
Krauthammer does not say what changes would have been required. Perhaps he means that Bush should have asked for a broader post-9/11 resolution authorizing the use of military force against al Qaeda. Well, we now know that Bush did ask for just that and was rejected.
Then again, maybe Krauthammer believes Bush should have asked Congress to repeal major provisions of FISA. As I explained here, it’s unlikely that Bush could have convinced Congress to make such changes without publicly revealing the existence of the then-secret NSA program. Even then, it’s questionable whether Congress would have gone along. Former Sen. Minority Leader Tom Daschle (“I did not and never would have supported giving authority to the president for such wiretaps“) makes it perfectly clear where he would have stood.
The NYTimes isn’t the only MSM outlet revealing classified secrets to our enemies. U.S. News and World Report revealed this week that “the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities.” The Volokh Conspiracy has legal analysis here, here, and here. Robert Spencer of Jihad Watch comments here. Jim Robbins comments at The Corner here.
Rick Moran at Rightwing Nuthouse is ticked off:
[W]hat has me breathing fire this morning is the idea that, in order to prevent the greatest of catastrophes – a nuclear weapon being exploded on American soil – people actually want the government to get a warrant to aim a Geiger counter at someone’s house. This is nuts. This is lunacy. This is as close to suicidal as one can get without actually putting the gun to your head.
I guess we’re really in trouble now. The Constitutional absolutists (I’m beginning to include some of the more pompous libertarians out there who are starting to annoy me more and more every day) are acting as if this is some kind of gigantic abstract game we’re playing. I can assure you that al Qaeda is not playing games. And the people who are currently responsible for seeing that the last thing you see isn’t a bright flash in the sky followed by the sighting of a mushroom shaped cloud are, thank the Lord, not playing games either….
[I]f the government is forced to abandon these vital monitoring programs or more likely, thanks to their being revealed, al Qaeda counters them, and if we are hit with a massive attack, those who are currently clucking their tongues like a bunch of old women at a quilting bee better not open their yaps criticizing the efforts government made to prevent the catastrophe. Your high falutin sense of the Constitution will be meaningless in the face of tens of thousands of dead and the country in shambles.
John Hinderaker weighs in too:
In my opinion, the idea that, in the context of the terrorist threat we currently face, the government can’t use radiation-detecting devices in public places–there is no indication that federal agents broke into anyone’s home with a Geiger counter–to look for nuclear weapons, is ludicrous.
I’d like to hear from the Democrats on this one. Yesterday, Mrs. R. and I were watching a television news program, when someone pointed out that no leading Democrat has yet called on President Bush to terminate the NSA intercept program. I laughed out loud. Good point! Likewise with the radiation story: Do we have the Democrats’ pledge that under a Democratic administration, the government would not use radiation-detecting equipment to search for dirty bombs? If so, that should make it a lot easier for millions of Americans to cast their votes in the 2008 election.
Last thought for now (it’s time for me to bake some Christmas cookies): When will these dangerous security leaks end? Is there anyone in Congress who will call for a DOJ investigation?
Tom Bevan at the Real Clear Politics Blog says the officials who leaked the NSA and radiation-monitoring stories “should be rounded up and prosecuted to the full extent of the law.”
Tom Maguire on the Times’ publication of classified information:
As to stopping the Times – maybe we do need a ruthless investigation of these leaks. I don’t know. But they are unaccountable and out of control, and they scare me.
Scott Johnson: Thinking about the great liberator
Big Lizards: The Times’ Reach Exceeds Its Grasp
Kevin Drum: What is the NSA up to?
DefenseTech: New tech behind NSA snoop case?
DefenseTech: NSA “tapping into… telecom’s main arteries”
Richard Posner: Our domestic intelligence crisis
Kevin Drum: More on the NSA program
Hugh Hewitt’s interview with Univ. of Chicago professor Cass Sunstein
John Hinderaker: On the legality of the NSA electronic intercept program