Thursday, December 15, 2005

A Sea Change

Friday's NYT has a bombshell story on the National Security Agency's expanded efforts to monitor the international phone calls and e-mails of Americans (and others inside our country) with possible terrorist ties. According to the Times, the effort began in 2002, after President Bush lifted a long-standing requirement that required court-approved warrants for domestic spying.

While the paper (ostensibly) presents both sides of the story, the slant of the article is clear. Tomorrow's Democratic talking points will charge that Bush is--once again--trashing the Constitution and running roughshod over the Bill of Rights. The paper notes that West Virginia Senator Jay Rockefeller, Vice-Chairman of the Senate Intelligence Committee, has voiced "concerns" about the program, as has a federal judge who supervises the Federal Intelligence Surveillance Court (FISA). At one point, the Times reports, elements of the surveillance program were suspended and refined, due to questions raised by the judge, Colleen Kollar-Kotelly. Judge Kollar-Kotelly wondered whether information obtained by the NSA was being used improperly as a basis for FISA wiretap warrant requests from the Justice Department, forcing refinements in the program.

Amid the hysteria you'll hear tomorrow, a little perspective is in order. As the lead agency for U.S. signals intelligence (SIGINT) efforts, NSA has monitored foreign communications since its inception in the early 1950s. Before the 2002 Presidential order, the NSA typically limited its domestic collection activities to foreign diplomatic establishments and personnel, and sought court orders before initiating those collection missions. Under the new program, the agency can monitor overseas calls and e-mails that originate in the United States, without first gaining approval from the FISA. Based on the Times article, the number of people under surveillance at any given time (both domestically and overseas), is rather small.

The need for this type of surveillance work is understandable. In the aftermath of 9-11, it was obvious that our intelligence agencies had failed to detect Al-Qaida preparations for the attacks on New York and Washington, D.C. In an effort to gather more information and prevent subsequent attacks, the decision was made to expand the NSA's domestic surveillance program, with adequate safeguards to protect civil liberties. Judging from the Times article, the program seems to be working, despite concerns from liberal critics. At least two Al-Qaida plots have been uncovered as a result of the expanded surveillance program. The Times attempts to argue that the FISA and law enforcement wiretapes could yield the same information, while ignoring various legal attempts to extend full legal rights to foreign terrorist combatants--a move the paper has supported. Proceeding down that slippery slope, the activities of the FISA and the FBI's wiretape program could easily come under legal and public scrutiny. Against that possible backdrop, it made sense to keep the program inside the NSA, without involvement by the intelligence court.

However, I doubt that program's achievements (and existing safeguards) will be enough to placate the Times, the ACLU, and many Senate Democrats. Interestingly, the paper claims it has been holding the story for more than a year, and considered a Bush Administration request not to publish it. But in the end, the public's right to know trumped security concerns.

That's one element you won't find in the NYT story--the impact of this disclosure on the collection program. It's no secret that once a program or technical collection system is exposed it's "haul" (the amount of information collected) begins to decrease. I'm sure the Times article will be carefully read by Al-Qaida, and they'll modify their communications methods to make our collection that much more difficult. Just wondering, if we miss a critical cell phone call or e-mail because of the NYT's revelation, will the paper apologize? Fat chance.

The Times also misses another key motivation for the surveillance program. By keeping it close-hold within the NSA, the administration and intelligence officials were hoping to lessen chances of a leak, or inadvertent disclosure. Secrecy was deemed vital to maintain the flow of critical information but that flow may now slow to a trickle, thanks to the NYT. Sometimes secrets are necessary to protect a democracy, but that is an alien concept in the Times newsroom and executive suite. The same organization that is so concerned about the Valerie Plame affair has no problems with exposing a secret that is far more vital to national security. It's the sort of hypocrisy the Times practices on a regular basis.

One anonmyous intelligence official--the sort of source the NYT loves--described the NSA program as a "sea change." In reality, the sea change occurred on 9-11, prompting the intelligence community to use extraordinary measures to gather information on foreign terrorists, and persons in the United States that may support them. The NSA program was one of those measures. I say was because the program will now lose much of its value, as terrorists find other ways to protect their information, including better encryption programs.

Make no mistake: we should be concerned about potential threats to our civil liberties.
But it seems to me that Islamofacist terrorists, hell-bent on killing as many Americans as possible, pose a far greater threat to our civil liberties than the NSA collection program.

A final thought: the Patriot Act is currently up for renewal in Congress. In its article, the Times carefully notes that the NSA wiretap program goes "far beyond" anything authorized in the Patriot Act. Again, the insinuation is clear: Bush's Patriot Act has created an environment where our own civil liberties are threatened. It's a powerful argument for Democrats--and certain wishy-washy Republicans--to vote against renewal. But I'm sure that the Times will tell you that publication of the NSA story--on the eve of the vote--is nothing more than a coincidence.


You'll note that the Times article makes no mention of Echelon, the purported information sharing agreement that supposedly exists between the NSA and its foreign SIGINT partners. There are no restrictions on what foreign SIGINT agencies can collect in the U.S., and that could provide yet another source of information on potential terrorist activities within our borders. But there is absolutely no proof that NSA is using its foreign partnerships to collect information inside the U.S., and for good reason. Entrusting that mission to a foreign SIGINT agency would open a veritable Pandora's box of potential civil liberties abuses. That's why President Bush and his intelligence advisors opted--correctly--for a limited program, under the auspices of the NSA.

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