Right Wing Nut House

Ever since the NSA intercept story broke nearly 3 weeks ago, it had been my position that before supporting or condemning the top secret program, I wanted to see details of how it actually worked.

From the beginning, I’ve had three concerns:

1. Was the program legal?
2. Was the program Constitutional?
3. Was the program necessary?

One might think that numbers 1 and 2 would be the same thing. But as I’ve learned from Orin Kerr and the Powerline guys, they are not. The program could in fact be Constitutional in that it did not violate either the Fourth Amendment or Article II of the Constitution which deals with the powers of the executive branch, while at the same time it could be illegal if the intercept program was specifically prohibited under the Foreign Intelligence Surveillance Act (FISA).

As for the necessity of the program, I always suspected that it was a vital tool in preventing another 9/11 but could not make that determination because many of the technical details were hidden from us.

I must confess that I’ve blown hot and cold on the issue, depending on who I happen to be reading at the moment. For example, John Hindraker has done some exhaustive analysis on the legality of the program, essentially saying that it appeared to be justified under FISA. He cited recent court cases that ruled in favor of the government where warrantless searches were concerned. While the analysis was thorough and answered some basic questions, I was troubled by some of the assumptions Mr. Hindraker was forced to make about how the program actually worked due to the fact that technical details were not forthcoming.

Hindraker also brilliantly elucidated the Constitutional arguments in favor of the program and the subsequent expansion of executive powers. This part was much more convincing - until I read Marty Lederman’s treatment of the same subject (with several excellent links outlining the liberal point of view on the issue). What is utterly fascinating is that two intelligent, learned people have come to differing conclusions using pretty much the same information. This leads me to believe that the legal arguments for or against the program will probably have to be adjudicated in a court of law.

As for Constitutionality, this has also been a murky issue thanks to our ignorance of the technical aspects of the program. However, with the publication of James Risen’s book State of War (extended excerpts here) some light has been shed on how the program actually worked that have eased many of the concerns I personally had regarding privacy rights. The jury, however, may still be out on whether or not the program was technically violating FISA.

Orin Kerr has analyzed some of the nuts and bolts involved in the program. Apparently, this New York Times article that followed up on the initial disclosures actually hit pretty close to the mark as to how the intercept program gathered communications:

Several officials said that after President Bush’s order authorizing the NSA program, senior government officials arranged with officials of some of the nation’s largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States’ communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the NSA said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970’s-era laws and regulations governing the NSA Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Compare that with this excerpt from Risen’s book I stole off of Kerr’s post:

In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital “packets” of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.

There have been reports that the spooks had to do a little arm twisting to get the cooperation of at least one of the Telecom companies involved. This leads me to believe that lawyers for the Telecom companies had many of the same concerns as the people in the Department of Justice and in the intelligence community who talked to Risen for his book - that the program was ambiguous enough that there was a possibility that it could be seen as technically violating the law or the Constitution.

Here’s Kerr on that:

Reading over this part of Risen’s book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic provider switches in the U.S. to monitor communications that were mostly foreign to foreign.

With that kind of ambiguity, I can see why it may have been difficult to get FISA Court approved wiretaps. If it was virtually impossible to separate domestic from international traffic while monitoring these switches, what exactly would the spooks have been able to ask of a FISA judge? Even though the FISA Court has a notoriously low threshold for granting warrants, the NSA literally had nothing to take to the Court that would have necessitated wiretaps in the first place.

As for electronic communications like emails, here’s another excerpt from Risen’s book that should ease privacy concerns there as well:

While the Internet uses packets to send and receive information, the packets are really just digital ones and zeroes that computers use to communicate with each other. The ones and zeroes can be reassembled into text to be read by a human, but computers do not need to do this and generally will not. A computer surveillance tool programmed to look for all emails to the Internet account “bob@aol.com” does not actually look for the text “bob@aol.com.” To simplify a bit, the tool instead begins by looking for emails, and when it finds an email, it scans the right place in the email for the digital equivalent of “bob@aol.com,” which is 0110001001101111011000100100000001100001. If this exact sequence of ones and zeros appears in the right place, the surveillance tool knows that it has found an email to bob@aol.com and will copy and record the block of ones and zeros that represent the email so that someone can later come back, convert the ones and zeros into text, and read the email. If the tool has an advanced filter and is configured properly, the billions of ones and zeros that do not relate to emails or to the exact sequence of 0s and 1s that represent the target account will pass through the device and be forgotten.

This answers many of the privacy concerns but not all. For instance, once a target email was converted back into text, was there a branching out of that program to start targeting people who happened to be connected not to the original target, but to someone who had sent the email in the first place? In other words, I sure would like to know if you are directly communicating via email with a terrorist. But does the government have the right to target people who send you emails? And what of people who send that person an email? And on and on. It is not clear whether or not the program allowed for this kind of “branching out” of targets or not. In my mind, that kind of scattershot approach would be troubling if not downright illegal.

On the other hand, as Kerr points out, this was a “real time” intercept program and hence, there was no “capture” of emails or phone calls on a massive scale as some have been alleging. This would seem to make it legal under FISA which requires warrants for communications that are actually in the possession of the government. This is admittedly murky territory and I would defer to those with more knowledge of the subject than I.

As for the Constitutional issues, Kerr is not enamored of the Justice Department’s invoking Article II to justify the intercept program. Specifically, government lawyers are saying the President had Congressional authorization for the program thanks to the “Authority to Use Military Force” (AUMF) resolution passed by Congress authorizing the Iraq invasion:

As I have said before, I find the AUMF and Article II arguments unconvincing, so if that’s the right issue to be focusing on, I’m with Armando. But something seems fishy here. For example, the leakers of the story seem focused on the Fourth Amendment instead of FISA. Further, given the extremely small number of people within the government who know the details of the program, it’s not clear that DOJ’s Office of Legislative Affairs (the office that sent the letter) was briefed on the details of the program. That is, the DOJ memo may have been written by people who knew less about the monitoring program than we now know thanks to Risen’s book. (This may seem odd to you if you have never worked in the federal government; my guess is that it will seem less odd to those who have.) So Armando may be right, but I don’t think we know enough to be sure of that.

Do we know enough now about the workings of the program to make a judgment about its legality and Constitutionality? I think we know enough to say that there is no clear cut case to answer that question in the negative. Which brings us to the $64,000 question upon which such ambiguous questions must be resolved: Was the program necessary?

Vice President Cheney had some thoughts on that yesterday in a speech he gave before the Heritage Society:

Another vital step the President took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to al-Qaeda that have one end in the United States. If we’d been able to do this before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon. They were in the United States, communicating with al-Qaeda associates overseas. But we didn’t know they were here plotting until it was too late.

If you’ll recall, the report of the 9/11 Commission focused criticism on our inability to uncover links between terrorists at home and terrorists abroad. The authorization the President made after September 11th helped address that problem in a manner that is fully consistent with the Constitutional responsibilities and legal authority of the President and with the civil liberties of the American people. The activities conducted under this authorization have helped to detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States.

The left will set up a strawman by arguing that every action the Administration has taken to protect us is justified by 9/11 and that they are using 9/11 as an “excuse” to accrue vast amounts of power and attack the Constitution.

The grown ups among us recognize that argument for what it is; bunkum. It would seem idiotic to have to remind liberals on a daily basis that 9/11 actually happened and that our enemies are working constantly to duplicate the success of that attack and even surpass it in terms of American blood spilled. Concerns over the Constitutionality and legality of the intercept program are well and good. And if they could be argued in a calm, rational manner by both sides I would have some hope that we could come to some kind of understanding on the limits of executive power and some kind of sensible outlook on civil liberties in a time of war.

But you and I both know that is an impossibility. The only thing that concerns the left about this program is that they can use it as a political club to beat the Republicans over the head with come election time. After that, and if they are successful in becoming the majority party in the House, they will give full rein to their hatred of the President as they attempt to use the ambiguity inherent in the program to try and impeach him.

I pity them their madness. The damage they would do the the executive powers of the President with such an inquiry could in fact hamstring future Chief Executives in fighting the war on terror. And that is a circumstance that could spell disaster for all of us.