Reading between the (Intercepted Communication) Lines

by emptywheel

I'm going to assume (based on abundant evidence) that James Risen and Eric Lichtblau have more logical sense than Pinch and Keller. Therefore, I'm going to also assume that when they present logically inconsistent facts in today's story, they are doing so to tell us some of the super secret stuff about the NSA intercept case that Dick and Bush don't want us to know.

Here's the fundamental illogic in their piece (and again, I'm quite confident this is intentional). The article makes it clear that it is illegal under the program to spy on US to US conversations:

Eavesdropping on communications between two people who are both inside the United States is prohibited under Mr. Bush's order allowing some domestic surveillance.

[snip]

Attorney General Alberto R. Gonzales also emphasized that the order only applied to international communications. "People are running around saying that the United States is somehow spying on American citizens calling their neighbors," he said. "Very, very important to understand that one party to the communication has to be outside the United States."

It goes on to quote our second ranking intelligence official saying there's no way such an intercept would happen by accident.

"The authorization given to N.S.A. by the president requires that one end of these communications has to be outside the United States," General Hayden answered. "I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States."

But then the article concludes by giving General Hayden a physics lesson.

With roaming cellphones, internationally routed e-mail, and voice-over Internet technology, "it's often tough to find out where a call started and ended," said Robert Morris, a former senior scientist at the N.S.A. who is retired. "The N.S.A. is good at it, but it's difficult even for them. Where a call actually came from is often a mystery."

Logic Lesson Number One: It is not possible to stay completely within the legal guidelines of the program, because NSA doesn't have the technical ability to guarantee they do so.

But wait, there's more.

General Hayden (who I hope for his sake has a good lawyer) goes on to imply that the people chosen for surveillance under this program are very carefully chosen ... by, um, a shift supervisor.

The Bush administration has not released the guidelines that the N.S.A. uses in determining who is suspected of having links to Al Qaeda and may be a target under the program. General Hayden said the determination was made by operational people at the agency and "must be signed off by a shift supervisor," with the process closely scrutinized by officials at the agency, the Justice Department and elsewhere.

Reassures you a bit, doesn't it? He must have some title like "The Shift Supervisor of the Fourth Amendment." But then Risen and Lichtblau go on to imply something that they probably suppressed in their first article.

General Hayden, at this week's briefing, would not discuss many technical aspects of the program and did not answer directly when asked whether the program was used to eavesdrop on people who should not have been. But he indicated that N.S.A. operational personnel sometimes decide to stop surveillance of a suspect when the eavesdropping has not produced relevant leads on terror cases.

"We can't waste resources on targets that simply don't provide valuable information, and when we decide that is the case," the decision on whether a target is "worthwhile" is usually made in days or weeks, he said.

Hmmm. Carefully chosen scrutiny, but not carefully chosen enough to avoid "wasting resources" on people who "don't provide valuable information." Given the growing consensus the new gimmick of this program involves some kind of data mining to pick its surveillance targets, I'm going to read this as saying they have had some number of false positives. You know. Targets for whom surveillance would not be "worthwhile" because said target has nothing to do with terrorism.

Logic Lesson Number Two: The search criteria used on this program are not stringent enough to prevent wiretapping innocent people.

I'm not the only one making such logical conclusions, apparently. We get word from the WaPo today that one of the FISA judges quit on Monday because he suspects he has been lied to about this program.

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

Tomorrow's logic lesson from Risen and Lichtblau may provide us more detail. But I'm guessing that we're going to see Hayden and Abu Gonzales guaranteeing us that evidence from this NSA program can't be used to apply for a FISA program (and therefore can't be used to collect evidence for court proceedings). Followed by evidence that that's, in fact, what they've been doing.

And Judge Robertson is not the only one reading between the lines of this program. We've now got Specter, Hagel, and Snowe actively calling for investigations (which, if I'm doing the math correctly, means we can get a majority on the Senate Intelligence Committee in favor of an investigation, but not yet a majority on the Senate Judiciary Committee--we'd need at least Lindsay Graham to get Judiciary involved).

One person I'm rather curious about is Trent Lott. He has been a bit frisky of late, taking a pragmatic stance against torture. But he apparently has no problem with this program.

Some prominent Republicans defended the surveillance, arguing it was necessary to combat terrorism. "I don't agree with the libertarians," said Sen. Trent Lott (R-Miss.). "I want my security first. I'll deal with all the details after that."

Now, I called his office yesterday--after this article appeared--to ask if Lott had issued a statement. Neither his intern-receptionist nor his press office offered any comment. So he may be doing more calculations on this. But for now, Lott must be adding things up differently. After all, he is almost certainly one of the Senators who received a briefing on this, back when he was still Minority Leader in 2002. So perhaps back in the day he made some promises to the White House to keep quiet on this. Which certainly ought to merit him some close attention from journalists.

No matter. It seems that Hagel may win the pragmatic calculation game on the domestic surveillance issue. After all, he's thus far the one Republican who has both supported the filibuster against PATRIOT and come out against NSA surveillance. Given McCain's wooziness on these issues. Hagel may be setting himself up as the true conservative presidential primary candidate, the defender of civil liberties.

More power to him, if he stands firm on protecting our civil liberties.

Comments

[steeve]

An excellent, well-reasoned post.

[DemFromCT]

Spy Court Judge Quits In Protest

Jurist Concerned Bush Order Tainted Work of Secret Panel

[DemFromCT]

Ops, cited well in the article, my apologies. Yes, sticking it to McCain vis a vis Hagel is the right thing to do. McCain is running in 2008 and we have to be clear on what the price is he's put on his soul to win.

[J. Thomason]

In one of Cheney's comments televised from Afghanistan or Pakistan this week he appeared to readily concede that the program intercepted communications within the United States.

[emptywheel]

I was going to do a Logic Part II post.

On one hand, you've got Cheney saying executive powers have been weakened since 1974.

On the other hand, you've got (Rove via) Drudge arguing that Carter and Clinton made the same kind of power grabs on surveillance Bush has.

Huh?

[William Ockham]

Don't bother trying to figure out any logic here. The administration is pulling the classic 'hand in the cookie jar' defense. First, deny you did it. Next, admit you did it, but claim that it was the right thing to do. Finally, say everybody else was doing it too. It might be charming when a five year old pulls it for the first time, but it's rather pathetic to see grown men and women using it to justify breaking the law. It's even more pathetic to see their enablers falling right into line.

[J. Thomason]

Other than the fact that its not patently true that executive powers have been politically limited since 1974 but are inherently limited by the Constitution, don't Watergate and Vietnam stand as textbook cases of why the executive needs to be checked?

The institutional jeopardy is great. Democrats in Congress are limited. Roberts is already on record supporting an expansive view of executive power. Something tells me Alito has passed the neocon litmus test on this.

Cheney and his ilk have had this simmering for some time.

[orionATl]

i like this post.

it seeks out and discusses simple available evidence to begin assessing in a measured way the importance of this nsa spying disclosure.

it seems to me that in current media commentary there is way too much deference payed to the "computer-technological","secret", and "terrorist fighting" nature of this program and way too little to the fact that this is fundamentally a political decision the administration made.

the post begins addressing the plausible-sounding, deceptively intended, assurance/denial rhetoric being pushed upon us by bush and his allies.

from hayden (program implementation),

from gonzales and rice (re legality),

from the president and allied congressmen (re congressional approval),

from chancy (re precedent),

all of these are focused on political issues, not technological ones.

personally, i am willing to bet this program will turnout to be a lot less technologically admirable and a lot more technologically clumsy than current public "dark and exotic secrets" speculation might led one to expect.

i like,too,the way this post addresses a specific issue --hayden's commments that one end of the conversation had to be outside the u.s.

isn't this tantamount to saying a u.s citizen's communications (phone, e-mail, etc) could and would be intercepted if the right "criteria" were present in the communication?

i'm in the u,s.

if, say, i call jordan and tell a family member that they shouldn't travel because of gossip i've heard about an al quaeda attack, would i be intercepted? (will this comment be intercdepted?)

i presume so.

if i also happen to discuss family matters, politics in the u.s. or in jordan, or financial matters, mabe even some mildly illegal financial matters, would my conversation be stored?

for how long?

could it be used as the basis for a fisa warrant, requested under an anti-terrorism guise, regarding my financial dealings ?

i'll look forward to part 2.

[Rayne]

Good stuff, EW. You might want to wade through Hayden's statement for the Joint Investigation Into September 11th: Ninth Public Hearing - Joint House/Senate Intelligence Committee Hearing on 17-OCT-02. He's already up to his eyeballs in it at that point.

Just wondering how the reconstruction of Lott's home is coming along...wonder if anybody in MS could get us a snap of any work being done on that big ol' front porch...

[texas dem]

Mike DeWine's on Judiciary too. I don't know if he'd be any use, but since he's got a tough race in 2006 his calculations are probably interesting.

Hm, I wonder if Paul Hackett could be convinced to say anything. I have no idea how anything plays in Ohio. The calculations for a guy like DeWine must be enormously complex. Still, it'd be a fun and easy way of yanking on his chain, and Hackett gets to look good in the process.

[Mimikatz]

Good post, as usual, EW. It was humorous to see Gergen on Hardball yesterday (Andrea Mitchell in for Tweety) commenting that we had been all through this with Nixon, that the justifications were the same as Haldeman and Erlichmann had given, that the courts didn't buy it then and that Congress had passed legislation to prevent it from happening again. "I never thought we would see this coming up again like this," or words to that effect.

He also said he believed that Congressional leaders would get together with the Admin and work out something, that there wouldn't be a big crisis.

I'm not so sure. It requires some contrition, or at least some flexibility, on the part of Cheney and Bush, and that is not their strong suit--in fact, it isn't even in their make-up. We'll see. I think this will prove more serious than the heads are projecting.

Of course, there will be a lot to deal with in January, what with Alito the royalist up for the Supreme Court, and the deferred budget reconciliation bill. The latter may drive the House back before the end of the month. They are still nowhere near in control of events here.

[tedb]

Who are the two Democrats not on board with the Patriot Act filibuster?

[emptywheel]

Johnson-SD and Nelson-NE

[John Casper]

"He also said he believed that Congressional leaders would get together with the Admin and work out something, that there wouldn't be a big crisis"
Mimikatz, I read something much more sinister into Gergan's shilling for Bush. IMO Bush's idea of a "crisis" is the AG testifying on the Hill with the MSM covering it. That is the "crisis" we need to help the "political middle," realize that Bush's spying broke the law.

[duginnj]

I am consistently amazed at the labyrinth EW looks at and makes it look so logical, albeit from an incredibly Machavellian angle. No news there. Understanding that, my own experience is that none of these (administration, military) people, get to these positions of power by forgetting even the smallest details of the path to power that got them to where they are; it simply doesnt happen. So anytime one of these guys says 'I dont recall', 'I dont know' is pure hooey. Those statements are proof they are lying.

[William Ockham]

Here are the important clues to what's going on:
1. The activities in question are clearly against the law (specifically FISA).
2. The activities in question involve intercepting communications presumed to be between persons inside the U.S. and persons outside the U.S.
3. The Senators and Representatives who were informed about the activities believed that the activities were some form of new technology (and we have Rockefeller's contemporaneous letter drawing the parallel to the ill-fated Total Information Awareness (TIA) program).
4. The President and his minions have drawn some interesting distinctions between these activities and FISA taps (detection vs. monitoring, agility, shift supervisors making the call, etc.)

Based on those things, I conclude (withdrawing for now my previous tinfoil hat theory) that it's pretty obvious what happened here. The NSA simply took its existing Echelon technology and procedures that are only supposed to be used for exclusively foreign communication and applied them to U.S. - international communications. That is, they've been monitoring huge amounts (maybe close to all) U.S. international communications with keyword programs. When a specific communication trips the alert, the shift supervisor decides whether or not to set up on on-going tap on that person.

[Michael Scott]

General Hayden (who I hope for his sake has a good lawyer) goes on to imply that the people chosen for surveillance under this program are very carefully chosen ... by, um, a shift supervisor.

I was a "shift supervisor" once, too. I was 16, wore a little paper hat, and made $3.25 an hour.

[Ashley Bowers]

I think assume to much but I guess we will see!

[Elena]

http://www.dembloggers.com/

===
href="http://www.tedkennedy.com/journal/544/the-presidential-daily-briefs-amendment?commented=1#c000899">http://www.tedkennedy.com/

Sen. Kennedy's Action and Blog site.

It is true that resident bush has begun martial law without announcing it. The VIPER program of arresting people in subway and trains who do not want armed guards with unruly guard dogs intimidating them into showing ID just for riding public transport and the very suspicious
death of a man on a plane in Miami who did NOT announce he had a bomb as testified by the
other passengers who also said they were much more afraid of the federal marhalls holding guns at their head and telling them not to look is very much like the murder of Menendez after the very suspicious London bombings.

This has to STOP NOW!!

I signed Rep. Conyers’ letter to begin an Impeachment Inquiry NOW at:

Conyer's Action Items

[Elena]

http://www.tedkennedy.com/

[William Ockham]

According to this:

http://seattlepi.nwsource.com/national/253223_spying23.html?dpfrom=thead

the whole thing really is turning the entire power of the NSA against virtually every American's international communications.

This activity is expressly prohibited by FISA.

[John Lopresti]

This is an outline mostly links for EW; encouragement of this thread, if during these days of accustomed social get togethers some of the participants are still visiting; plus a few topics addressed in commentaries of this group of threaders.
EW: 'Clinton...huh': Serious background discussion at http://balkin.blogspot.com/2005/12/judge-posner-and-ad-hoc-initiatives-ie.html, only slightly liberal but has its moments, and a link supplied by the columnist there to a semiserious tech site at
http://arstechnica.com/news.ars/post/20051220-5813.html ars tecnica.
EW: Your prior column regarding what is inside US and what is interpreted as to another nation; set the browser search engine to international callback, router masking, CALEA, E911 (chipset in cellphones still imperfectly implemented).

EW: On Senate committees, I look at SSCI, judiciary, foreign affairs to take the lead; I appreciate your direct approach with Lott. This is involved, because some Senatorial barter debts are very longterm, as you observe; however, I offer the following which you probably already have reviewed, but, I aggregate them in this list:
Caucus of 14: Word is cohesiveness is less than guaranteed, at least according to my research, but its maverick-pseudocentrist members include Graham
Graham; he wrote a rejected proposed amendment to cancel habeas for Guantanamoites; read erudite semileft of center discussions at On habeas: http://obsidianwings.blogs.com/obsidian_wings/2005/11/requiem.html try here; and her subsequent column http://obsidianwings.blogs.com/obsidian_wings/2005/12/requiem_update.html which I have yet to study. Bingaman's alternative supplanted Graham's with the help of most of the nonattorney senators who are left of right; in my view, a nonchoice as both were regressive amendments, both Bingaman's and Graham's. I think one reason Graham was carrying the administration's safari load on habeas was related to what has been happening that the administration is very worried about in last week's scathing Luttig authored decision; if you need more specific searchable keywords I could write those as well; probably you read this material already. There is a lot about it linked through scotusblog.com/moveabletype. Basically, the worry is the habeas partisans will reveal too much about the torture scene, and the maneuver is to transfer it to a different court; this evoked Luttig's conservative irascibility; and the administration realized he is still a jurist and not a complete acolyte. So they got a prose dose of his nonacolytic invective in the opinion rejecting transfer; CJ Roberts will need to exercise the famed diplomacy skills for subsequent engineering; seems like the administration is in a pickle about both torture and habeas, given the apparent likelihood of failure of the request to transfer the prisoner and lessen the charges to avoid embarrassing matters surfacing in discovery.

EW more on caucus of 14: among those senators discussed above in this thread who are also in the Cof14: Graham R-SC, Nelson D-NE, McCain R-AZ, Snowe R-ME , DeWine R-OH.

EW: on SSCI in re: McCain no torture amendment passed; Roberts SSCI chair voted nay.

JCasper: Right now I still wonder how much mentoring Gonzales is providing on an ongoing basis to Bush; probably they are close; Bush needs to rely on lawyers, because he is not a lawyer, as he jovially reminded us during the vetting of Rehnquist's replacement for Chief Justice.

To Dem from TX on OH: try dKos, its proprietor is an OH activist and smart.
Ockham: FISA needs modernizing http://www.tedkennedy.com/journal/544/the-presidential-daily-briefs-amendment#c000611 ; also send Google looking for TALON etc.
Elena: By synchronicity I participated in the discussion you highlight in your link.

[kim]

EW, your enthusiasm is certainly infectious. Somehow I still tend to trust the government (irregulars like Rove, Boulton, and Libby ignored). I'm a fan of the post-Nixon restrictions on domestic spying but really do trust that, today, a NSA analyst-bureaucrat won't confuse me with an al-qaeda "evil-doer."

Is your concern that the government or legal system isn't able to cope with this new ability/technology, or do you support some sort of regulation/oversight?

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