Listening In

We join this conversation in progress... I have been discussing FISA wiretaps with Silence Dogood and an anonymous source who started the email thread by mailing me a copy of an Atlantic Monthly article, Big Brother Is Listening. (Paid link)

After a few emails, Silence suggested that I get this on the blog. I will start by excerpting the original article, trying to be fair. The article states that the listening is more prevalent and more sophisticated than most imagine, and that it is easier than you might think to get on the watch list:

It used to be that before the NSA could place the name of an American on its watch list, it had to go before a FISA-court judge and show that it had probable cause-that the facts and circumstances were such that a prudent person would think the individual was somehow connected to terrorism-in order to get a warrant. But under the new procedures put into effect by Bush's 2001 order, warrants do not always have to be obtained, and the critical decision about whether to put an American on a watch list is left to the vague and ubjective "reasonable belief" of an NSA shift supervisor. In charge of hundreds of people, the supervisor manages a wide range of sigint specialists, including signals-conversion analysts separating HBO television programs from cell-phone calls, traffic analysts sifting through massive telephone data streams looking for suspicious patterns, cryptanalysts attempting to read e-mail obscured by complex encryption algorithms, voice-language analysts translating the gist of a phone call from Dari into English, and cryptolinguists trying to unscramble a call on a secure telephone. Bypassing the FISA court has meant that the number of Americans targeted by the NSA has increased since 2001 from perhaps a dozen per year to as many as 5,000 over the last four years, knowledgeable sources told The Washington Post in February. If telephone records indicate that one of the NSA's targets regularly dials a given telephone number, that number and any names associated with it are added to the watch lists and the communications on that line are screened by computer. Names and information on the watch lists are shared with the FBI, the CIA, the Department of Homeland Security, and foreign intelligence services. Once a person's name is in the files, even if nothing incriminating ever turns up, it will likely remain there forever. There is no way to request removal, because there is no way to confirm that a name is on the list.

The next paragraph details a French businessman, who attracted the attention of US, Australians and UK intelligence with a $1.1 Million transaction with Iran. It turns out that the sale was legal, and Bamford is concerned that this person, now on the watch list may be monitored closely, denied entry, or face some other consternation when he committed no wrong and faced no due process.

The article takes a very interesting look at the size, scope and secrecy of the FISA court.

On the first Saturday in April of 2002, the temperature in Washington, D.C., had taken a dive. Tourists were bundled up against the cold, and the cherry trees along the Tidal Basin were fast losing their blossoms to the biting winds. But a few miles to the south, in the Dowden Terrace neighborhood of Alexandria, Virginia, the chilly weather was not deterring Royce C. Lamberth, a bald and burly Texan, from mowing his lawn. He stopped only when four cars filled with FBI agents suddenly pulled up in front of his house. The agents were there not to arrest him but to request an emergency court hearing to obtain seven top-secret warrants to eavesdrop on Americans.
[...]
The court's job is to decide whether to grant warrants requested by the NSA or the FBI to monitor communications of American citizens and legal residents. The law allows the government up to three days after it starts eavesdropping to ask for a warrant; every violation of FISA carries a penalty of up to five years in prison. Between May 18, 1979, when the court opened for business, until the end of 2004, it granted 18,742 NSA and FBI applications; it turned down only four outright.

I commented that security and privacy were tensions in balance and that the tale of the French businessman, while regrettable, was a fair trade when compared to the fact that FBI agents did not search Zacharias Moussaoui's laptop for lack of a FISA warrant and probable cause. Disrupting terrorism, I claimed was too important.

Some good things were said on both sides, to be lost to the ether. But the political view of privacy and civil liberties on the right were questioned against the defense of President Bush from me and other Republicans. I asked if my emailer was so keen to give the 105th Congress more authority at the expense of President Clinton. He didn't say it, but would I have been keen to give more authority to Clinton/Albright?

I rested my final case on Federalist #10 and #64, highlighting the importance of executive power in national security. I don't want the dim bulbs on either side of either house mucking too much up with real-time defense decisions. Here's the thread in progress:

Friend X: No, I didn't ask for the Republicans to increase Legislative power in the 90's, nor am I asking Republicans who control congress or the Democrats who fear being branded "weak on security" to increase Legislative power today. I'm asking congress to exercise their oversight responsibilities and look into why the President ignored the existing FISA law. If I recollect correctly, the administration's two supporting arguments for the legality of the warrantless surveillance are that 1) Congress authorized it in the Joint Resolution of Sept 14, 2001 with the words "the President is authorized to use all necessary and appropriate force", and 2) that in his role as Commander-in-Chief the president can do whatever he feels is appropriate. The first argument is silly. It in essence says that the Congress authorized the President to do anything. Prison camps? Why not? Door-to-Door searches? Why not? Is it ok for Bush to initiate these measures? The Joint Resolution does not prohibit these far-fetched measures any more than it prohibits warrantless surveillance. The language of the Joint Resolution as well as the language of the constitution leaves a lot open to interpretation. This is why it would be totally appropriate for Congress to have in-depth hearings on what is a very controversial action by the current administration.

I understand that you're ok with the balance the administration has struck between security and civil liberties concerns. I think this will always be a subject for debate. Are you saying that someone who is not comfortable with the president's approach and would like congressional investigation into the matter is simply being a partisan hack?

Another thought (this is a big day for me) -- I have a problem with the argument that it's ok if the government is spying on you only when you're communicating with someone overseas. The president has claimed he can do this because it's his prerogative as commander-in-chief. At what point does he cross the line of what's appropriate and what isn't? Wouldn't it be appropriate for our representatives in Congress to discuss this? If not, when is it appropriate to investigate? Can Congress ever do this? I share your lack of confidence in the players on both sides of the aisle in both houses, but that in no way means I believe in giving a president carte blanche, be he or she a Democrat or Republican.

Here's the last question:

Silence Dogood: explain to me how the same red state crowd that stridently defends their right to bear arms, and avoid government licensing of weapons because when the government goes bad, the first thing they will do is track down and confiscate weapons is so willing to give up their right to private communication? When the government goes bad it will track you down for your ideas before your weapons. Imagine how colonial America would have progressed if communication was monitored and the printing presses serialized by the British. I consider freedom of speech to be the most basic right in a free society, but take away the right to anonymity and speech will be less free, I think it is as basic as that.

I admitted that I was radically unconcerned. That I was involved in a business headquartered overseas and did not necessarily consider my conversations with foreign nationals protected by the Constitution. I was a lot more worried about McCain-Feingold which limits exactly the speech that the First Amendment seeks to protect.

How 'bout it right wingers and liberty freaks? Are we silently giving away fundamental rights because we agree with the administration?

War on Terror Posted by jk at March 27, 2006 8:40 PM