Right Wing Nut House



Filed under: Government — Rick Moran @ 9:48 am

I still haven’t come down firmly on one side or the other with regard to the legality or the necessity of the NSA intercept program. Chalk it up to a longstanding belief that just because the government is capable of doing something, doesn’t make it right…or even legal.

We still know so little about the program’s nuts and bolts that trying to resolve any legal ramifications is, well, just plain batty. I have great respect for the legal minds at Powerline, but their defense of the President’s power in this matter rests, I believe, on too many assumptions that at this point, are impossible to prove or disprove. They have done a first rate job in framing the Constitutional issues involved but their ultimate defense of the program leaves me a little cold.

In short, I want to see as many of the particulars of how the program operated as possible without revealing methodology and technological secrets that would compromise our security. What criteria was used to target citizens (or non-citizens residing here)? What criteria was used to flag any communications that were intercepted for later examination? And most importantly (something we may never find out) what were the technological impediments to using FISA to get warrants, even retroactively.

Since most of these questions cannot entirely be answered - and others relating to the extent and necessity of the program are still a total mystery - I find it puzzling that so many on the right would simply take the President’s word on this and defend the efficacy of the program without vital information that would either exonerate or condemn the Administration’s actions.

As for the left, their “arguments” can safely be dismissed as the rantings of a bunch of loons. I have yet to see a single, coherent rationale from anyone to the left of Andrew Sullivan as to why this program on its face is illegal. Sullivan is an hysteric and civil libertarian absolutist - but at least he has a rational basis for opposing the very idea of warrantless surveillance.

Others are simply mouthing nonsense. “King George” or “Bush the dictator” and even the ever-hopeful use of the word “impeachment” is, given all that his still hidden from us about the program, jaw-dropping idiocy and worse, partisan claptrap disguised as faux outrage over what may turn out to be something that is totally necessary to the safety and security of the United States.

The President himself sounds confident that he did the right thing - perhaps too confident:

“This is a limited program designed to prevent attacks on the United States of America, and I repeat limited,” Bush said before flying back to Washington after six days cloistered on his ranch in Crawford, Tex. “I think most Americans understand the need to find out what the enemy’s thinking.

“If somebody from al Qaeda is calling you, we’d like to know why.”

I’d also like to know why a known al Qaeda operative is calling someone here in the United States. What I question is does the surveillance program then sprout wings and fly to other domestic phone numbers of people who aren’t being called by al Qaeda but instead are simply caught up in the merciless technology used in intercepting terrorist communications? We already have indications that this has happened. And if the New York Times can be believed when innocents were caught up in the intercept program the safeguards put into place actually worked and little harm was done either to the victim’s privacy or the Constitution.

But again, so little is known about how the program worked that this is pure guesswork at this point. And the President has not been especially helpful in alleviating concerns about how extensive this program really is:

I think most Americans understand the need to find out what the enemy’s thinking, and that’s what we’re doing,” Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.

“They attacked us before, they’ll attack us again if they can,” he said. “And we’re going to do everything we can to stop them.”

The President must feel that the legal case made by his lawyers and lawyers at the NSA is either foolproof or ambiguous enough that he would be in no danger of being impeached for domestic spying. The question that will be answered over time will be is the President whistling past the graveyard in this belief or is it grounded in the law and precedent.

The fact that no one knows this makes both defenders and detractors of the President look a little silly. Even this story yesterday about a DOJ underling who balked at reauthorizing the intercept program (and was blogfodder for lefty sites) can easily be dismissed as a bureaucrat who realized that the program would someday be made public and wanted no part in getting involved in the messy details. This is a far cry from a principled stand against tyranny which was the meme coming from lefty sites but you have to admit, it doesn’t sound quite as good.

All in all, the Administration has some explaining to do. The fact that the President seems confident about both the necessity and legality of the program may give comfort to some. But for me, I remain something of a skeptic on the subject.


  1. I agree that the most important information regarding this story is yet to come. Frankly, I don’t think most Americans object strongly to the President’s program even if it is eventually ruled illegal, as long as it shown to have been directed solely at terror suspects. However, if the public discovers that the program has been used to monitor anti-war activists, reporters, Muslims in general, etc. then I believe that public sentiment will turn dramatically against Bush, even if the program is ultimately judged technically legal. That’s when we start moving into Richard Nixon territory.

    My only other observation on this subject is that I find deeply unbelievable the Bush Administration’s repeated assertions that national security has been damaged by this leak. What possible advantage is gained by the terrorists upon learning that the President is eavesdropping on them without a warrant, as opposed to eavesdropping on them with a warrant? I just don’t see it.

    Comment by LaurenceB — 1/2/2006 @ 4:10 pm

  2. The damage is incalcuable. ANY information about how we spy on them can be used to defeat those efforts.

    Al Qaeda has extensive contacts with intelligence professionals in both Pakistan and Saudi Arabia who would be more than willing to help them analyze even the tiniest bit of information gleaned from newspaper reports and turn that info into useful ways to defeat our efforts to intercept their communications.

    Comment by Rick Moran — 1/2/2006 @ 4:14 pm

  3. OK, I’m willing to listen.

    Specifically in this case - What information was learned by Al Queda, and in what way can it be used against us?

    Comment by LaurenceB — 1/2/2006 @ 4:51 pm

  4. Just to be clear, I’m not defending all such leaks. Condi Rice claims that Osama stopped using a satellite phone when news reports alerted him to the fact we were tracing it. If that is true, then that is clearly a case of irresponsible journalism.

    Comment by LaurenceB — 1/2/2006 @ 4:55 pm

  5. I think we will find that this is going to be another case of technology driven law. Legislation always follows the development of new devices, so without phones, there can be no phone taps. But how does the law stand on using computers to look for “patterns” in the use of digital information flows? Can you use the information gained from looking at the pattern of phone calls/internets activity to look for information networks, without a warrent, because you don’t listen to the phone calls themselves. For instance, what if you hold a large number of phone conversations in a buffer memory, say for 48 hours, and only listen to the ones that you find interesting immeadietly before and after a stimulas. e.g. a bombing. The pattern of calls preciding and after a bombing could be very useful. Having the calls, which are far too many to listen to, would allow forensic scientists to work out who had fore knowlege. The vast magority of the calls would not be listened to, but would be avalible to be listened to if wanted. I know that is the sort of thing I would wish to do if I were involved in tracking terrorists, supporters and cheerleaders.

    Comment by DocMartyn — 1/2/2006 @ 8:19 pm

  6. Since when does the Commander-in-Chief need a judge’s permission to repel a foreign attack on the United States?

    Comment by Tom G — 1/2/2006 @ 10:25 pm

  7. Enjoyed your thoughtful post, Rick.

    After 9/11 all we heard from the press were things like “why didn’t we connect the dots?…..if we had connected the dots maybe we could have prevented this…international and domestic intelligence agencies aren’t working together to connect the dots…yada yada”. Well, one needs dots in the first place if you’re planning to connect them later. Where do they come from? No one seemed to be asking that question in the months after 9/11. And the “we” the press referred to was definitely not you and me, it was the government they were chastising.

    DocMartyn makes excellent points with respect to technology. Our buying and financial habits and patterns are tracked through our credit cards, while private spyware can and does track our internet use. We, as citizens, are captured on survelience cameras thousands of times a day. All of this without our permission or court orders. We are “patted down” at sports stadiums and airports. I don’t like any of the new invasiveness, in fact, I hate it, but I deal with it because it’s how life is in the 21st century. I guess I view the NSA intercept program for potential terrorists as part of that continuum.

    Comment by LKM — 1/3/2006 @ 12:17 am

  8. I’m still listening if anyone would like to explain precisely what advantageous information was gained by the terrorists in regards to this leak.

    I really do have an open mind on this.

    If anyone can explain why the terrorists have gained an upperhand as a result of this leak - as asserted repeatedly by the Bush Administration - please feel free to do so. If your explanation is feasible, I am perfectly willing to recant, reconsider, repent, and reform. :)


    Comment by LaurenceB — 1/3/2006 @ 9:19 am

  9. LB:

    The effect is cumulative as well as specific. We don’t know EXACTLY what harm was done because we don’t know EXACTLY what info the terrorists have in their possession prior to outing the program.

    But you must assume the worst and believe that ANY info helps them. I’m sure al Qaeda’s heirarchy has a helluva lot better idea of how the NSA program actually works than the NY Times or any of us.

    Comment by Rick Moran — 1/3/2006 @ 9:23 am

  10. Hmmm… I don’t mean to be offensive, but that’s not a very convincing answer.

    The fact is that we do know precisely what was in the NYT article. Therefore, we know exactly what new information that article provided to Al Queda. The new information in a nutshell was this: Eavesdropping is being done without a warrant. And so the question becomes: How could the knowledge of warrantless bugging (as opposed to warranted bugging) conceivably be used by Al Queda to their advantage? I just don’t see how it could.

    Comment by LaurenceB — 1/3/2006 @ 10:26 am

  11. I disagree strongly that “warrantless bugging” is the new information in all the articles that have been written about the program.

    In fact, there have been hints that the program has the cooperation of Telecom companies with regards to the switches where calls are routed as well as many, many other tidbits of info that knowledgable intelligence professionals would be able to construct an outline of HOW the surveillance is carried out. Do you think it would be helpful to our enemies to know that not only are their calls from overseas being monitored but that ANY electronic communications are also intercepted?

    Again, in this case, both NSA professionals AND the White House are extremely concerned. Can you see by revealing details to satisfy YOUR curiosity that the program would be compromised further?

    Comment by Rick Moran — 1/3/2006 @ 10:32 am

  12. OK, now we’re making progress. I can see some points of agreement:

    1. It seems that we agree that revelation of eavesdropping without a warrant was not in itself damaging.

    2. We agree that where information regarding methods and practices of eavesdropping is revealed, then that is harmful.

    Which brings me to what I think is my new position:

    I continue to believe that the Bush Administration’s reaction to the original NYT article was overblown and perhaps even cynically manipulative, given that the article did not delve into eavesdropping methods, but rather focused on the legal aspects of the program. However, I also believe that subsequent speculation about eavesdropping programs in various media outlets (connected or not to the recently revealed NSA program) is in most cases not a responsible topic for journalists to broach.

    Which brings me to a new question:
    Do bloggers get an exemption to my new position, or should they also be condemned for speculating as to methods of eavesdropping?

    Comment by LaurenceB — 1/3/2006 @ 11:53 am

  13. Good point - but the fact that most of what bloggers are speculating about is already out there anyway, I see very little harm done - except perhaps in that something someone writes may be a way of looking at the program that eluded our enemies.

    Possible - but doubtful.

    Comment by Rick Moran — 1/3/2006 @ 12:00 pm

  14. This really isn’t very complicated.

    The United States is at war with a ruthless enemy who will, given the chance, attack us here at home. Imagine the effects–economic, political, social–of a second, perhaps worse, September 11. In that event, what would the American people have to say about measures necessary to secure the homeland? Does anyone imagine that they’d object to measures involving to a serious diminution of civil liberties?

    In wartime, you don’t make a free gift of sensitive information to your enemy. That is elementary common sense–a commodity in short supply among liberals, progressives and leftists, apparently. They take neither the war nor the security of this country seriously. When the next terrorist attack comes, as surely it will, these people will have a lot to answer for.

    Comment by Tom G — 1/4/2006 @ 8:11 am

  15. Tom:

    I agree with almost everything you said. The only thing I was really trying to say in the article was that we don’t know enough about the program to condemn it or support it. The more I read about it the more benign it seems to me as far as civil liberties are concerned. But there may be aspects of the program - stuff we’ll probably never know due to its sensitive nature - that stepped way over the line and entered the realm of unnecessary violations of the Constitution.

    The fact that no one knows this makes lefties look like idiots. But it also makes some conservatives look like Administration shills. I prefer to wait a while before making a value judgment on this very important program.

    Comment by Rick Moran — 1/4/2006 @ 8:16 am

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