Balkinization  

Saturday, October 11, 2008

Why We Should Care About The NSA Story

JB

Both Marty and Orin Kerr have been involved in a valuable exchange of posts about the legality of the NSA's surveillance programs reported by ABC News. I think the legal analysis is quite interesting. But in some ways, it misses the point of ABC's story about surveillance practices at the NSA.

Let us assume for the moment that the NSA surveillance program at issue here is perfectly constitutional and legal. Still, what is troubling about the story is that the statutory, administrative, and constitutional framework still permits significant abuse.

The NSA spied on conversations by Americans that had nothing to do with terrorism; surveillance continued because the salacious nature of the conversations was interesting to the eavesdroppers, and then the conversations were traded among various government employees for their amusement.

When you design a surveillance program, it is not enough that the system conform with existing legal doctrines; it must also have built in methods to prevent abuse. When you give the executive branch legal power to spy on Americans because of the overriding need to protect the country's safety, you also have to put in place methods to ensure that these powers are used only in the public interest. Government servants are not angels, they are not free from bias, prejudice, self-interest, or corruption. "Not illegal under current law" is not the same thing as "well-designed."

The point of the ABC story, as I understand it, is that the Bush Administration has repeatedly assured us that the surveillance it engages in is absolutely necessary to protect our safety and that the legal and institutional constraints the Bush Administration has put in place are adequate to prevent misuse of the powers we have given our government. The report suggests that this is not the case.

In debating the intricate details of whether a particular policy or practice is consistent with existing Fourth Amendment doctrine or is covered by FISA we may tend to miss the forest for the trees. Existing constitutional, legal and administrative safeguards may not be sufficient to prevent the abuse of state power. If this is so, and the ABC story suggests it is, it means that we must change those structures and the way that surveillance is conducted. We need new forms of oversight and ways of watching the watchers.

One thing that Marty said seems to me particularly worth noting in this context: He does not simply focus on the Fourth Amendment and FISA; he also goes on to speculate that the NSA program violates minimization procedures that are designed to prevent abuse. If the NSA no longer is required to engage in such minimization (because of a secret rescinding of a Presidential order), or is not enforcing these requirements, or has found a way around them, this is quite important, as Marty suggests.

It is comforting to think that this story is exceptional, the result of "a few bad apples." But we have heard this excuse before in the context of the Administration's detention and interrogation policies. We learned that the abuse and torture of prisoners was not in fact solely the work of a few bad apples, but was the direct or indirect consequence of policies and decisions made at the highest levels. Evidence of abuse in surveillance practices should cause us to be more concerned, not less concerned, that the Administration has failed to design checks on abuse in its surveillance programs.

Comments:

Jack:

The article was meant to suggest a broad misuse of power, but does not give us context to determine if these reports are the common or the rare exception. Indeed, the reporter did not appear to even think to ask that question.

Even taken at face value, the vast majority of the report simply involves cases where American citizens ended up on the telecommunications grid being monitored. This is going to happen under a blanket surveillance no matter what minimization procedures are employed.

I would suggest that ELINT only crosses the line into abuse when it is targeting innocent Americans for non-foreign intelligence gathering purposes. The intelligence sources relied upon by the article do not suggest that anything of the kind is occurring.

Once again, we are not speaking about peacetime Boston. If you are engaging in telecommunications in a foreign war zone, you should assume that those communications are being monitored by NSA, DIA, the local military and police, the enemy, and various foreign intelligence agencies with an interest in the conflict. You have no reasonable expectation of privacy in a foreign war zone and it is not reasonable to blind our wartime intelligence gathering in order to suit the personal privacy concerns of war zone tourists.

A useful analogy is how the military regulated the press during WWII. The press had no right to privacy in the war zone. Not only were their dispatches reviewed, they were censored of the body counts and other gruesomeness that is the trade of the modern media for the purpose of maintaining domestic civilian morale.
 

"Once again, we are not speaking about peacetime Boston."

But what if the calls are between an American in the war zone and a spouse and a lover in Boston or Boulder City? Shouldn't there be privacy concerns for those in the U.S.? Just imagine the J. Edgar Hoover mentality that some monitors of these calls may have as they listen to pillow talk.

Perhaps with such calls, there should be quickly interjected a warning similar to cigarette packages notifying the parties they should be careful what they talk about as they are being monitored. Eliminating the pillow talk might, however, be bad for the morale of the person in the war zone. There could result "broad" misuse of power.
 

JB: "surveillance continued because the salacious nature of the conversations was interesting to the eavesdroppers, and then the conversations were traded among various government employees for their amusement."

Your point is well made. Even stipulating the surveillance could be legal to the letter of some law this certainly would fail on the spirit. "Continued because the parties still qualified" is very different from "because the salacious nature of the conversations was interesting to the eavesdroppers" and "shared as required by law amongst relevant governmental agencies" is very different from "the conversations were traded among various government employees for their amusement." Sometimes the letter of the law isn't enough, and these acts clearly violate the spirit of the supreme law of our land which was designed specifically to bar governmental intrusion into individual acts where and as much as possible. (Wasn't that once a rallying cry of the GOP?)

The issue here is the growing potential for abuse of such measures as we slouch toward what you call the surveillance state. Some people see a cockroach and look to make sure there are no others, perhaps clean a little deeper to remove that which attracts the bug. Some people see that same cockroach and figure it isn't crawling in their plate, so no matter.
 

shag from brookline said...

BD: "Once again, we are not speaking about peacetime Boston."

But what if the calls are between an American in the war zone and a spouse and a lover in Boston or Boulder City? Shouldn't there be privacy concerns for those in the U.S.?


No. If you are calling into the war zone where the telecommunications on that end are being lawfully monitored, you have waved your expectation of privacy the same as if you physically travelled there. This is the approach taken under the revised FISA.

I have no trouble with the intelligence community adopting reasonable minimization rules, but they need to be flexible and leave a great deal of discretion to local commanders.

Let's take your pillow talk example. While we want to avoid abuse of such surveillance for prurient reasons, the fact is that pillow talk is also the oldest and one of the most fertile areas for intelligence gathering because love or lust makes targets careless with secrets.

The bottom line is that some bright line set of minimization rules for war zones created by folks without any background in war or intelligence gathering is not a good idea.
 

Advice from little Lisa's bro:

"Keep it in your pants and in your mind."

or

"Phone celibacy."

otherwise you may be guilty of PTUI, Pillow Talk Under the Influence, pronounced "Pa-too-we."
 

A satellite phone broadcasts to the entire horizon, and the satellite broadcasts the downlink over thousands of square miles. The US is not the only country with the ability to intercept this stuff. So if you cleaned up all the bad apples in NSA and they kept their attention strictly on business, you still should assume your calls are being picked up by the Russians, China, MI 6, Mossad, Iran, ...

So either you don't really care if someone is listening in or you get a phone with some serious encryption capability that can't be cracked by Lynndie England.
 

I have seen no mention of specifics of how calling actually operates from overseas to U.S. for U.S. citizens. So here's a bit of detail:

Last year I was a DOD civilian (teacher) stationed in Japan at a U.S. military base. I actually lived off base along with many of those stationed there. I had a Japanese phone, but it was known to the housing office on base, and could have been monitored. I didn't use this phone to call the U.S., however. The standard way to call the U.S. is to use a phone card, purchased on-base at little vending machines, provided by ATT and SoftBank. The cards cost $20., and gave you 200 minutes to the States. It seemed to me even last year highly likely that these phone card connections were being monitored. I mainly called my mother and siblings and friends, and talked about the most mundane things. But if were being monitored, this would have been a key way. Of course to gain access to these vending machines, I had to have access to the base for some reason.

Also, as a citizen voting abroad, when you use the on-line system to ask for an absentee ballot, you receive the warning that the government reserves the right to monitor your computer, take your files, etc. So I didn't use this system (I sent a postcard thru the embassy instead).

When you log onto your computer at work even as a teacher in DOD schools, every day you receive a screen warning that nothing you do on this computer is private, not even email. Okay, it's their computer, but I hated this.

Russael
 

He argues that because several courts of appeals have held that there is no reasonable expectation of privacy in the use of cordless phones, so, too, there is no reasonable expectation of privacy in the use of satellite phones...

Of course that is true. I'm one of those on the complaint list against NSA/VZ here in Maine. Sold out. At every level - commission, state and federal. There is no reasonable expectation of privacy. Period. And what's the difference between a phone and an internet connection - it's all data - ask Spitzer?

How about "there's no expectation of privacy because every mainstream media outlet reports everything is wiretapped? [And hey, I've been running a state level ISP for 15 years now.]

That ship has sailed. What interests me is what it will take before such "legal" arguments get the laugh they deserve.

I have zero expectation that this government has any interest in protecting me or mine or your and yours in any way, but only an expectation that the next "good environment", "public health", "economic justice", or simple plain good idea will not happen. An expectation that given a mad cow, this government will make sure the fat-catters will be able to feed me the beef and the bullshit. Bobbit's "market state".

Therefore I have no expectation and am not covered. Only suckers have a reasonable expection, I guess, right?
 

Heh, What dryki said.

Let me see, I've been a programmer for over thirty years, spent 11 of those years in banking, and 7 in credit reporting, which included such tasks as searching databases with over 10O million+ consumer records on non-unique identifiers.

Oh, and I've been investigating the Bush administration for war crimes for seven years, and filed two amicus briefs in federal courts that flat-out accuse them of committing crimes that potentially carry the death penalty.

My expectation of privacy you ask???

Heh. My expectation is that I don't give a shit about them spying on me any more than they do about me hunting them as war criminals.

The funniest thing about it is that I've been reading them like a book since 2001 just by listening to what they say in public -- and they're so dishonest that they're virtually incapable of keeping anything secret.

It's weird I know, but true: they haven't steered me wrong in seven years. Not once.
 

"The funniest thing about it is that I've been reading them like a book since 2001 just by listening to what they say in public -- and they're so dishonest that they're virtually incapable of keeping anything secret."

The late I. F. (Izzy) Stone read and published what the government said, using their own words to hang them. Not enough of the media do this. When times are good financially, the voting public's focus is upon their finances and what they provide them. When times are bad financially, the voting public's focus is upon blaming others for their losses. If the media in both good and bad times used Izzy's techniques, and the voting public paid attention, perhaps the bad times would not be so bad. Transparency and accountability are necessary in both good and bad times.
 

Ya, that is definitely true Shag. Public complacency is just a killer, and gee, even now I'm just flumoxed by how many people are clinging to their rosy delusions for dear life. What would ever change Bart's mind about anything?

I've been reading ANGLER the past week, an exercise fraught with irony for me -- and I don't mean that as a knock on Bart Gellman, becasue he's done a very good job on the book, and fleshed out a lot of the story for us.

But for example, this is from ANGLER on page 176, describing the lead-up to the 2002.02.07 White House order on Geneva:

"The vice president's counsel [Addington] proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent the principles of" the Geneva Conventions. There were people who read that line with relief. It looked pro-Geneva. They were not reading very closely. [...] Addington's proposal had almost boundless room for manuver. It committed the US government to nothing. When Bush issued his public decision two weeks later, on February 7, 2002, he adopted that formula verbatim. Again, the vice president's counsel had written the words that Bush turned into law."

Gellman actually understates the case a bit. Translated into plain English, what Addington's formula means is: "We will obey Geneva unless we want to violate it."

Gellman also gets the conclusion wrong: a statement that literally says nothing cannot be or make law.

And I understood that the minute I read the White House "Fact Sheet" they issued on 2002.02.07. Later, I wrote an article about it that was published in 2003.

Needless to say, the DOJ Civil Division and the Solicitor General's office have been citing that utterly dishonest claim in their utterly dishonest briefs in the detainee cases ever since.

And here we are, nearly seven years later, with a gang of criminals still occupying the White House pretending to be the government of the United States.
 

BDP:If you are engaging in telecommunications in a foreign war zone, you should assume that those communications are being monitored by NSA, DIA, the local military and police, the enemy, and various foreign intelligence agencies with an interest in the conflict.

You missed the entire point of Jack's post. Even if you assume that people are listening and being monitored, do you expect said people to share your communications with other people as a form of entertainment? Furthermore, should the entertainment value of the communication influence the amount of attention it receives from the agencies doing the surveillance?

Wouldn't you rather expect that the monitor would say "Hmm, nothing here," and either delete the data or store it in the "not likely to be communication of interest" file?
 

pms_chicago said...

BDP:If you are engaging in telecommunications in a foreign war zone, you should assume that those communications are being monitored by NSA, DIA, the local military and police, the enemy, and various foreign intelligence agencies with an interest in the conflict.

You missed the entire point of Jack's post. Even if you assume that people are listening and being monitored, do you expect said people to share your communications with other people as a form of entertainment?


This is not the entire or even a major point of Jack's post. However, in this only instance of wrongdoing reported in the article, the analyst(s) who shared this recording for their own personal amusement should be subject to discipline.
 

60 Minutes had a fascinating segment tonight giving us a glimpse into how the Army uses what is termed "persistent observation" of the battlefield (including ELINT telecommunications intercepts) to identify Mahdi Army terrorists hiding amongst the civilian population, isolate and then kill them with Predator launched missiles. In a large part due to this incredible intelligence collection, the Army decimated the Mahdi Army and liberated Sadr City with only a literal handful of Army KIA.

THIS is just a sample of why ELINT of foreign telecommunications in war zones is so critical to winning those wars and saving lives.
 

Saving lives? I am an Iraqi.
 

dryki said...

Saving lives? I am an Iraqi.

Yes, saving the lives of the Iraqi military, police and civilians as well as our troops.

As for the Iranian trained terrorists trying to kill all of the above, I could give less than a damn and even less mercy.
 

As for the Iranian trained terrorists trying to kill all of the above, I could give less than a damn and even less mercy.

Bart, it doesn't take much for you to slap the "enemy" label on human beings. And once you have labeled another of God's children as an "enemy" you embrace your love of carnage as a solution to the problems of mankind.

There is a direct relationship between your lack of truthfulness, lack of integrity and your love of violence.
 

FYI, definition of ELINT = intelligence derived from non-communications electromagnetic radiations from foreign sources (other than radioactive sources)
 

mattski said...

BD: As for the Iranian trained terrorists trying to kill all of the above, I could give less than a damn and even less mercy.

Bart, it doesn't take much for you to slap the "enemy" label on human beings. And once you have labeled another of God's children as an "enemy" you embrace your love of carnage as a solution to the problems of mankind.


Time to get a clue. Terrorists who engage in the mass murder of their own people as well as ours are the enemies of all mankind.

Self defense and the defense of others is not contrary to God's commandments, which forbid murder not killing in self defense.
 

"Time to get a clue. Terrorists who engage in the mass murder of their own people as well as ours are the enemies of all mankind."

Well you Republicans have murdered more people on both sides of this idiotic 'war' on nothing in particular and everything in general than anyone else has Bart --

You are describing yourself.
 

Bart said: "Time to get a clue. Terrorists who engage in the mass murder of their own people as well as ours are the enemies of all mankind."

assumption check: (1) these terrorists have been accurately identified; (2) these terrorists have 'engage[d] in the mass murder of their own people as well as ours'
Does ordering or planning these actions count? If so, that #2 sweeps in a lot of people - not least of which would be pretty much anyone engaged in warfare at higher than, say, a company level.
Perhaps a tighter definition, with less left "understood" would be useful.

Bart also said: "Self defense and the defense of others is not contrary to God's commandments, which forbid murder not killing in self defense."
assumption check: (1)'parent-killer begging for mercy because he's an orphan' test; when I poke a hornet nest, am I blameless when the hornets sting other people? Yes, this is grossly oversimplified, but then so is your claim. And (2) How many of these self-defense killings are completely clean? Killing even one non-terrorist (or killing a [terrorist='freedom fighter']) will almost always lead to the creation of one or more other terrorists. Perhaps we can minimize the 'hydra's heads' problem, but avoiding the hydra is infinitely preferable.
 

Good comment John, it reminded me of something David Addington said during his testimony to the House Judiciary Committee back in June...

REP. NADLER: Okay. If the CIA program is found to be unlawful, would you bear any responsibility for that?

MR. ADDINGTON: If the CIA program is found to be unlawful --

REP. NADLER: Yes.

MR. ADDINGTON: -- would I bear responsibility?

REP. NADLER: Any responsibility. I didn't say --

MR. ADDINGTON: Is that a moral question? A legal question? I mean, let me distinguish --

REP. NADLER: Interpret it as you will, either way.

MR. ADDINGTON: I believe -- and I'm somewhat sympathetic to the approach Professor Schroeder took -- that the legal opinions issued by the Department of Justice, to the extent they are relied upon by those who are implementing the president's --

REP. NADLER: No, we're not talking about legal opinions -- excuse me. We're not talking about legal opinions at the Department of Justice. Given your involvement in discussions with the CIA, did these discussions implicate what they did? And if what they did was unlawful, would your discussions have any bearing on that? That's my real question.

MR. ADDINGTON: No, I wouldn't be responsible is the answer to your question.

REP. NADLER: Thank you. Mr. Yoo --

MR. ADDINGTON: Legal or moral.

*

It all begs the question of just exactly what folks like Addington or Bart mean when they speak of responsibility... moral, legal, or otherwise -- and it never seems to enter their feverish little minds that perhaps the 911 attackers thought the United States had some responsibility for something too.
 

johnr said...

Bart said: "Time to get a clue. Terrorists who engage in the mass murder of their own people as well as ours are the enemies of all mankind."

assumption check: (1) these terrorists have been accurately identified...


The Mahdi Army stopped fighting and surrendered all of their territory to the Iraqi government. Pretty conclusive evidence that.

(2) these terrorists have 'engage[d] in the mass murder of their own people as well as ours'

Rewind to 2006 and google "ethno sectarian violence." The Shia Mahdi Army was slaughtering the Sunni and any Shia who opposed them. They killed tens of thousands and drove some hundreds of thousands into exile.

Bart also said: "Self defense and the defense of others is not contrary to God's commandments, which forbid murder not killing in self defense."

assumption check: (1)'parent-killer begging for mercy because he's an orphan' test; when I poke a hornet nest, am I blameless when the hornets sting other people?


The al Zarqawi led al Qaeda launched a Tet-like offensive in 2006 to instigate a civil war between the Iraql Shia and Sunni to make Iraq ungovernable and to compel our political class to surrender Iraq to them. It nearly worked.

(2) How many of these self-defense killings are completely clean?

Nothing in war is completely clean. War is hell and cannot be refined.

Killing even one non-terrorist (or killing a [terrorist='freedom fighter']) will almost always lead to the creation of one or more other terrorists. Perhaps we can minimize the 'hydra's heads' problem, but avoiding the hydra is infinitely preferable.

This is based on the false assumption that the People support and want to join terrorist groups. In fact, most support is compelled by terror. The cure is to clear and hold the population centers, removing the coercion and the coerced support.

The proof is the destruction of the terrorist networks and the return of peace to nearly all of Iraq.
 

"Nothing in war is completely clean."

Oh do tell Bart, like for example: the fact that there was no need for this senseless, murderous, CRIMINAL war of aggression in the first place.
 

This is based on the false assumption that the People support and want to join terrorist groups. In fact, most support is compelled by terror.

Well, perhaps you're right. Space aliens & robots have been proven to supply most of the man-power for violent interest groups.

The proof is the destruction of the terrorist networks and the return of peace to nearly all of Iraq.

I see. Could you tell us about your childhood?
 

bart, what is a terrorist? Someone who randomly kills civilians in random unprovoked attacks during an undeclared war/insurrection? Since we've killed somewhere between 80,000 to over 1,000,000 civilians in Iraq so far, does that make the US forces terrorists as well?
 

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