Jan 26 2006

NSA Wrap Up – For Now

Published by at 6:42 pm under All General Discussions,FISA-NSA


US Dept Of Justice just released a strong argument against the left’s rantings.

More Updates below

Work is beginning to impinge heavily on my blogging time, so there will be some delays and a lower pace of writing on occasion. Of course this all hit when Gonzales and Hayden went out to defend the NSA-FISA relationship. John Hindraker at Powerline did an excellent job reviewing Gonzales’ statement, and I want to use that statement to recap where I believe we are with this whole issue.

When the story broke I realized this was a PR effort in the vein of the Plame Game. I remembered all the silence surrounding the Echelon effort under Clinton, and the fact no one seemed to understand the power the Federal government wanted in being able to decrypt anything, anywhere. That was my first post on this subject.

Amazingly, the impeachment calls came out immediately and across the liberal spectrum, with little to no information on the issue itself! All of this staged outrage demonstrated this was probably a coordinated effort (here and here).

Realizing this story was not subsiding, but actually running amok fueled by BDS, I looked over the NY Times article in detail and realized people were jumping to conclusions – or being led to jump to conclusions. The first indication something fishy was up was the claim of a protest resignation by a judge who never once voiced a protest, and a Federal Government which would not comment! This is not normal. That is when I realized the Judge was probably involved with the leak somehow and I posted on this possibility.

But there was something else wrong. While people were jumping to the conclusion Bush bypassed FISA with the NSA to ‘target’ people in the US for surveillance, the only thing this resigning judge would claim was the NSA information ‘tainted’ the FISA warrants. That meant he was not claiming the bypass, he was concerned about the NSA program being a precursor to FISA and feeding information into the probable cause claims.

When the other left leaning FISA judges chimed in, it was again clear that their concerns were simply that information from NSA surveillance was used to establish probable cause for FISA warrants. It was more ‘tainting’ and not anything about ‘illegal surveillance’.

No one in the FISA court has ever made the claim the administration targeted people in the US for warrantless surveillance.

Now the important thing to note with the administration statements is the repeated definition of ‘the target’. I have stated this many times since it is the lynchpin of what requires a warrant for surveillance. The AG has been absolutely clear and consistent on this subject:

This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda.

I highlighted the text to point out why FISA and warrants are not legally required since this is not FISA’s domain. The ‘target’ of the surveillance is our enemy, and typically overseas. That puts the surveillance under the military’s responsibilities which do not require warrants for surveillance of enemies overseas. FISA is meant to cover a ‘target’ here in the US. The target of any surveillance has all their communications monitored.

The target is in communications with ‘contacts’ who are monitored only when communicating with the target. This is normal for all warranted and warrentless surveillance. The target determines jurisdiction and thus the need for a warrant. So US contacts of overseas terrorists are legally being monitored by the NSA because they are being caught up in surveillance of the target.

Now there appears to have been times when all the communications monitored where in the US. And that is possible because communications are mobile. If we are monitoring a terrorists cell phone who is overseas, we may not have any idea where the terrorist is. We may not have ‘eyes’ on them. So when that terrorists then travels to the US now both ends of the communication are in the US because the terrorist brought his end of the communication over our border.

Now this could mean a FISA warrant might be called for. But I am of the opinion it means nothing. The NSA is monitoring an enemy of our country and that enemy has made it to our shores. The FBI doesn’t necessarily take over in that situation (it can, but if we want to send the military to capture the enemy combatant that is legal too).

Now look at the modern age of communications. They call them mobile phones for a reason and we just discussed that example. Harder yet is e-mail. Your e-mail can be accessed from any computer, and there are of course portable laptop computers which too can cross borders. E-mail can be stored on a US or International server for access from anywhere in the world.

Websites and forums are even more ubiquitous. So it is possible the person we are tracking is able to move around and end up here in the US.

This means there could be situations where a phone or computer is passed to someone else, or passed to an innocent person. All this means is digital surveillance is not going to be perfect. All that we need to do is make sure innocent people accidentally or erroneously snared are protected, and we all realize that our enemy is heading here, may be here, and the NSA will watch them where ever the enemy goes.

FISA is a tool to use if we want to use criminal laws to stop an attack, verses military type action. FISA is there to make someone in the US a full target – i.e., to go beyond just monitoring their discussions with an overseas target but now to monitor everything.

Sorry for the light (and incomplete postings). More later if time permits.

UPDATE: continued

What the AG has done is stand by the claim this is a military action monitoring the enemy’s plans for attacking us. The military does not use subpoenas and warrants to fight a war.

The question of necessity rightly falls to our nation’s military leaders. You’ve heard the President declare: We are a nation at war.

And in this war, our military employs a wide variety of tools and weapons to defeat the enemy. General Mike Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, laid out yesterday why a terrorist surveillance program that allows us to quickly collect important information about our enemy is so vital and necessary to the War on Terror.

Unless the shrillness from the left can establish clear examples of the NSA not targeting our enemies (and from there snaring communications with people here in the US), but cases where there was actual targeting of ALL the communications of people here in the US, they are fighting a lost cause. We will not worry about a program that can incidentally and innocently touch people who are naively communicating with the enemy.

I believe the nation understands that any contacts with a known terrorist/enemy is sufficient cause to investigate that person and ascertain a risk leve for them. And this is what is obviously happening with the avalanche of leads coming from the NSA to the FBI and hitting the FISA courts for warrants.

And it is this avalanche of leads that is the most disturbing. Not that there is an avalanche, but that there was a time when apparently very little was being passed to the FBI and FISA process from our overseas intelligence. The Gorelick Wall, which the FISA court trumpeted as their most important achievement – after 9-11! – must have been some wall.

So we know NSA monitors terrorists and their potential to be a threat. We know the FBI had just about stopped using FISA, but was not getting much if any intel from NSA regarding leads here in the US. My guess is pre 9-11 all information about contacts in the US was dumped because of lazy policy.

Federal lawyers can get into a mind set of brute force simplicity. They do it all the time. Because of all the issues with surveillance and criminal investigations, it was probably decided to just not allow any cross pollination (the ‘tainting’ process). The easy, lazy solution.

Given the reaction of the FISA judges and the FBI, my guess is prior to 9-11 we threw out most leads regarding contacts here in the US unless there was some unambiguous and obvious evidence. What Bush did was, under the powers granted him in the AUMF, to wage war and not criminal probes on terrorists. But mechanically all it appears he did was open the gate of intel.

The administration has an army of experts that have first hand knowledge of the program and its importance. Again, from Gonzales

As General Hayden explained yesterday, many men and women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of this surveillance program.

When people defending the land say don’t mess with this and we will use the tool properly and legally because we need it, all the whining by liberal reporters turns into nothing more than static. The defenders vs the liberal whiners?

There is also an army of lawyers who know the details and have determined it to be legal – nothing to snear at. This guidance to the President is he has the authority, and therefore there is no need to go to Congress to get a law passed to do something that is already legal. That is a lot of concurrence for Federal lawyers.

The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.

All the opposing side has is partisan fantasy stories about possible (not probable, let alone proven) risks of abuse. One has to ask them what makes them think they are worth abusing power over? The tin-hat fools on the left are so inept and do so much to keep the conservatives in power by simply talking there is no need to monitor their lunatic discussions? Geez, what we hear now openly is more than enough for partisan purpose.

I look forward to the hearings. I think Bush does to.


Our reader MerryJ1 posted a link in the comments section to this 1976 Senate Report on the NSA. It has some excellent and pertinent information. Such as the fact Bush did not order the NSA to monitor international calls as something new for them to do post 9-11:

Geographic Responsibilities. — Although none of the applicable executive directives explicitly prohibit NSA from intercepting communications which occur wholly within the United States, internal NSA policy has always prohibited such interceptions. In practice, NSA limits itself to communications where at least one of the terminals is in a foreign country. This means that when Americans use a telephone or other communications link between this country and overseas, their words may be intercepted by NSA.

The NSA has been doing this since at least 1976 if not earlier. And James Carafano has a piece out today that also confirms features of the NSA-FISA debate I have been making.

Further, FISA applies to foreign intelligence collection conducted “within the United States” or against “U.S. persons.”

This clearly indicates FISA is US focused and the NSA is overseas focused but can and does have the authority to monitor international communications. It cannot focus on a target in America.

The debate begins when NSA monitoring uncovers a U.S. connection, like a U.S. person or phone number communicating with the foreign source. Under existing rules, U.S. person information collected collaterally in a legitimate foreign intercept is subject to “minimization” (shielded from further disclosure) and the U.S. person cannot be “targeted” without a warrant. That’s OK, too.

Just as I have been saying and the administration has been maintaining.

The problem arises when the initial “monitoring” is conducted by technical or automated means that use computer analysis to identify connections, key words or patterns. Only those communications matching these criteria are then selected for further analysis. Critics of the current program contend that in all cases where a U.S. person or U.S. source communication is “intercepted,” a warrant is required.

Well, that would be a new law then, but does not actually pertain the Bush administration’s program. The communications are with targets – not sampling of all contents looking for keywords. That has been specifically excluded from the debate it would seem. I disagree FISA needs to be amended for the purpose of re-authorizing NSA’s decades long mission. It could use a technology upgrade though.

It still looks like there is absolutely nothing to this issue at all.

7 responses so far

7 Responses to “NSA Wrap Up – For Now”

  1. BIGDOG says:

    Thanks for all your work AJ. Get some rest too…:)

  2. Snapple says:

    Thanks for your post. I was sick today and kept checking to see if you had anything new. I am sure it is a lot of work.

    On FOX they are explaining all of this NSA surveillance just like you do.

    Bush says that there is a danger that writing a specific law could reveal what NSA is doing to the enemy. They don’t want to spell it out.

    Hi to BIGDOG, too!

  3. Snapple says:

    “If we want to send the military to capture the enemy combatant that is legal too.”

    That would really get some people’s undies in a bunch!

    Wouldn’t you love to see Al Gore opining on that?

  4. MerryJ1 says:

    More great work, AJ.

    I was looking for something about the Church Committee, and found something interesting and relevant.

    As to the authority of NSA itself, it is not restricted by law to outside the US, but merely by its own policy. The following gives the nitty-gritty on the origins and scope of NSA as related in the Church Committee Report (here’s the link to the whole thing, but right below that I’ve extracted the pertinent parts):


    1. Origins

    NSA was established in 1952 by a Top Secret directive issued by President Truman. 6 Under this directive, NSA assumed the responsibilities of the Armed Forces Security Agency, which had been created after World War II to integrate American cryptologic efforts. 7 These efforts had expanded rapidly after World War II as a result of the demonstrated wartime value of breaking enemy codes, particularly those of the Japanese.

    2. Responsibilities

    (b) Geographic Responsibilities. — Although none of the applicable executive directives explicitly prohibit NSA from intercepting communications which occur wholly within the United States, internal NSA policy has always prohibited such interceptions. In practice, NSA limits itself to communications where at least one of the terminals is in a foreign country. This means that when Americans use a telephone or other communications link between this country and overseas, their words may be intercepted by NSA.

    Merry Whitney

  5. clarice says:

    Judge Posner’s article should be of interest to you, AJ.”Warrants are for situations where the police should not be allowed to do something (like search one’s home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove. ” http://www.tnr.com/doc.mhtml?i=20060206&s=posner020606&c=1

  6. […] In the NSA-FISA dust up I had wondered what was the big change Bush wrought post 9-11? It seemed inconceivable that the NSA was not monitoring our enemies and collecting communications with people in the US. But as I wrote in my recent round up the only thing that appeared to change was specific leads being passed to the FBI, who would check them out and then take the high priority leads to FISA for domestic surveillance. The only complaint by the left leaning FISA justuices was ‘tainting’ the FISA process. […]