The Watchers – 2parse

[digg-reddit-me]Reddit, you know I sorta love you. You’re my source for news that doesn’t get covered enough in the American press, for pictures of cats doing cute things, for viral videos. You’re the main reason I’ve already seen every cool link on the internet before anyone else. In other words, I kinda love you.

But Easter morning, I woke up to see this:

Which reminded me of the side of reddit that pisses me off. The way uninformed but sufficiently cynical sentiments go unchallenged, complete with “facts” that aren’t facts. It reminds me that as great as you are at finding the holes in the mainstream media coverage, sometimes you too fall prey to group-think. And that not even facts can arrest the momentum of a rapidly rising story.

Because – you see, reddit, there are a few problems with that post.

1) It talks of “the wiretapping program” as if it were one thing. It isn’t. There have been a number of programs that have existed before 9/11 and that evolved in the years afterwards. (More on that in a minute.)

2) Most importantly, no ongoing wiretapping program is illegal. Or at least, even as it’s hard to state something with certainty about classified programs whose operations are behind a veil of secrecy, the main part of Bush’s wiretapping program that was illegal was eventually authorized by Congress – first temporarily with the Protect America Act of 2007, and then permanently in the summer before the 2008 elections with the Foreign Intelligence Surveillance Act of 1978 Amendments Act.

This was the infamous bill that gave the telecoms immunity and was all over reddit at the time. It’s main purpose was to authorize certain changes to the FISA bill.

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That summarizes what I’m annoyed at. But for some history:

FISA had been proposed by Ted Kennedy to rein in the abuses of the CIA and the executive branch that the Watergate and Church Committee investigations uncovered. (These abuses were largely by the CIA which, though prohibited from operating within America, had abused it’s authority to spy on foreign agents within America to spy on Americans opposed to the Vietnam War and conduct operations on American soil.) FISA was an attempt to check presidential authority by restraining the surveillance capabilities in a few specific ways. (This was parallel to the checks on governmental power that the FBI and other domestic police organizations abided by requiring more proper warrants.)

FISA permitted two types of surveillance:

Without a court order, but with the Attorney General’s certification, the president could authorize the surveillance of a communications between foreign powers and their agents so long as “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” These would include non-American citizens operating overseas.
The president could authorize the surveillance of the communications between foreign powers and their agents so long as “proposed minimization procedures” for the interception of communications to which a United States person is a party if they applied for a warrant from a special FISA court within 72 hours after surveillance began. These would include foreign agents operating in America – or later, international terrorists.

After September 11, NSA Director Michael Hayden expanded surveillance to some (undetermined) degree, but believed he lacked the authority to go further. Under the FISA system, a judge for the FISA Court who was driving by the Pentagon when it was attacked, issued a number of emergency warrants from his phone in his car. But Hayden believed he could be more effective if he were authorized to expand “surveillance of what would be classified as ‘international communications’ — because one end of the communication is outside the United States even though one end is here.” Hayden reportedly pushed back against requests from Dick Cheney to spy on purely domestic targets, but the program continued to broaden. Bush asserted the authority to act outside of the FISA Court and the NSA began to analyze call and email metadata as well without authorization from Congress or the FISA Court. Some unknown program – likely related to metadata analysis – triggered the infamous hospital room standoff that nearly sparked the resignations of the Attorney General and the top levels of the Justice Department, the Director of the FBI, and possibly the top lawyers in the CIA, State Department, and Pentagon.

Congress, under Democratic control after 2006, pushed back with Amendments to FISA in 2008 which conceded to Bush in giving immunity for the telecom companies who cooperated with him and authorized most of the surveillance that he had asserted the authority to do without legislation. What the bill did do was specifically restrain the executive branch from overriding it by invoking war powers and legislate specific rules for how surveillance could be conducted. The new legislation:

Increased the time allowed for warrantless surveillance to continue from 48 hours to 7 days. (This includes pen registers and trap & trace surveillance.)
Required FISA court permission to wiretap Americans who are overseas.
Required government agencies to cease warranted surveillance of an American who is abroad if said person enters the United States. (However, said surveillance may resume if it is reasonably believed that the person has left the States.)
Prohibited targeting a foreigner to eavesdrop on an American’s calls or e-mails without court approval.
Allowed the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
Allowed eavesdropping in emergencies without court approval, provided the government files required papers within a week.

As far as we know, the surveillance currently being conducted by the Obama administration follows these rules and is thus legal, though subject to Constitutional challenge and of course challenges on policy grounds.

On policy grounds, there are two main arguments I’m sympathetic with. First, that collecting too much untargeted data leads to information overload. And second, that it creates the apparatus that could be used for – as Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, warned in a Cato Institute event:

The government is already collecting so much information…especially in the meta-space where you’re talking about …transactional logs and phone records and emails and that sort of thing…

There are very few technological and legal impediments anymore to the government getting information one way or another.

That’s not 100% the case but information is sort of there and it will be obtained.

I think that right now, generally speaking, their interest does lie in monitoring for foreign threats and for foreign terrorists and their connections in the United States. My concern is that we’re developing a capability and a capacity that in a different environment, with a different mindset, that that could be turned in very targeted ways on individuals or groups of individuals…

The government is really good at – once someone is in the sights …and they know a target – they’re pretty good at finding out a lot of information about that person and diagramming his network. The hard part is these threats that are existing out there beyond the sights, beyond the crosshairs, and this book is largely about people who exist in that space.

I guess the alarm call that I’m raising is if the government ever want to take that and target it very selectively for reasons that we might find appalling right now and unthinkable, they could in fact know a lot. [my emphasis]

Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, had a good rundown of changes in surveillance under the Bush administration in a talk for CATO:

What my reporting showed in terms of the evolution…of what was probably called the Terrorist Surveillance Program — or the President’s Surveillance Program or Stellar Wind or The Bag or whatever you know you wanna call it — was that the germ of the idea begins not long after 9/11 when NSA finds itself in need of broadening the aperture of the surveillance that it wants to do — and Mike Hayden who is the director NSA at the time concludes that he has existing authority to do that under an executive order actually fashioned in the Reagan administration coincidentally called Executive Order Twelve Triple Three.

And he tells lawmakers that NSA is broadening its scope of collection and that we have existing authorities to do that. There’s some back and forth between him and the House Intelligence Committee in particular on this question. Nancy Pelosi somewhat famously I think writes this letter that says I’m not sure I quite understand what you’re talking about here. And I’m not quite sure whether or not you can do this or whether you need to have a new order. As it was described to me by people who were familiar with that … that was actually going up on targeted — what they called — hot numbers…They were people that NSA wanted to go after that they thought were tied or connected to the 9/11 attacks.

It is also the case that the FISA court issued a number of warrants immediately after the [attack]. I think Judge Lambert actually was…actually issuing them, or released preliminary orders I think from his phone at one point. He was driving by the Pentagon when the planes hit and people came to get him to issue [unintelligible] orders…[Then] around October of 2001, when George Tenet, then the director of Central Intelligence [Agency], begins making the rounds with the intelligence chiefs and says, “…[A]re you doing everything that you can right now to prevent another 9/11?…Do you’ve got everything that you need?” And Hayden’s response — he’s testified to this — is, “Not within my current authority.” So, Hayden goes down, briefs administration officials, the president, the vice president are there, and essentially lays out a plan by which they could do expanded surveillance of what would be classified as “international communications” — because one end of the communication is outside the United States even though one end is here. And so thus begins the sort of first stage of the Terrorist Surveillance Program.

There was reportedly some desire by Cheney and David Addington to do pure domestic warrantless surveillance — and the reporting I’ve seen on this… — is that Hayden pushed back on that. But he did want to construct a system that whereby they could do what he later called, “hot pursuit of terrorist communications,” without having to go through the FISA warrant process. It’s after that that NSA starts also going to telecommunications companies and wanting access to the metadata as well. I always sort of imagine the program — to sort of make sense of it in my mind — is that in the perfect world if this thing worked, you [would] have all this metadata that would tell you where all the patterns of communications were and as soon as one of them… hit the trip wire of suspicious activity over here, NSA now has the authorities to go zap right down and find that particular communication and pull it out and look at it.

So there were layers to it… It evolved from the initial stage after 9/11 — “We have the authority to do some expanded surveillance” [to] “We need more authority to do more expanded surveillance” [to] “Now we want to go even beyond that as well.” It was my understanding from talking to people who were involved — and people the White House — that it was the expanded metadata surveillance part that triggered the standoff in the hospital room. We’re still I think not entirely sure what part of it it was but — it revolved around that data and the collection and use of that information. [my emphases]