I could get into a point-by-point rebuttal, but I really don’t want to spar. Let me try to stick to some big picture items. But before I do, I'll take a stab at breaking down the quote you highlighted at the bottom of your reply.
… The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda…..
No disagreement.
… If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S.
There is a false hood and a misdirection here in this sentence. The clause, as consistent with FISA requirements is false. FISA doesn’t say you can’t monitor from the US. It says you can’t monitor a US person – in the US - without a court order. When that is made clear, then the whole sentence lacks substance.
New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers….
The misdirection regards new technology. New technology? The technology that permits us to know both the origination and termination point of a call is – ooh - 20-25 years old. There is “new” technology that NSA is probably using - more along the lines of computer horsepower, pattern recognition and data mining, But there is nothing ‘new” about what she presupposes in the sentence above. So as I said before, either she doesn’t know what she’s talking about, or she does and she chooses to obfuscate the issue.
Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?
This is an obvious pejorative straw man. It gets back to knaves, traitors and fools slur. Of course, we all want to locate AQ operatives. But critics argue that it has to be done consistent with law and consistent with constitutional protections. Moreover it has to be done smart (see my postscript).
If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed AA Flight 77 into the Pentagon.
Non Sequitor. Yes, and if we had the Nimitz (…the carrier not the Admiral…) patrolling in Pacific, we could have prevented Pearl Harbor. There is no way to know whether we would have (a) intercepted the calls (b) interpreted the information accurately and (c) acted upon it. In fact, I can make a powerful case that – at least from what has been released about this new program – we would have been LESS likely. Oh and by the way, what about that “new technology” stuff. Is it really “new” or at least 6 years old . Seems a little contradictory there. (I won’t bore you with product life cycles issues, ubiquity in the network etc.)
She crafts a fine paragraph. It sounds good. It is also hooey.
… Nonetheless, it is at the crossroads between the 4th amendment and genuine national security interests that FISA breaks down…
Let’s stipulate that we’re all decent patriotic citizens, who wish to protect the National Security interest without infringing the Constitution. If FISA doesn’t work, we need to fix it or replace it.
… though I have preliminarily concluded that it knew that the legalities of the surveillance were quite dodgy, yet that it acted in good faith.
Lets assume – for the sake of argument – as s starting point we give the benefit of the doubt to the Administration. What additional facts and circumstances would undermine the conclusion that they were acting in good faith?
Let’s try this….
From what we know, the program is - prima facie - in violation of FISA. FISA stipulates criminal penalties for its violation. (I’d come up with legal arguments as to why its OK too.) The Administration attempts to defend its position by stating either (a) the AUMF authorizes it or (b) if AUMF doesn’t its irrelevant because FISA is an unconstitutional limitation of the President’s Article II powers. I sincerely doubt that either argument will hold up – so the Administration will have violated the law – but again we’re giving them the benefit of doubt on good intentions.
…. Why else would a politically sophisticated administration inform Democratic congressmen of what it was doing unless it was?
The simple fact of the matter is that the Administration hasn’t broken 1 law – FISA. It has broken 3. You highlight that they informed Democratic Congressman of what they were doing. They also violated the relevant law.
The National Security Act – as amended – requires that the Administration keep the Full Intelligence Committees of both the House & the Senate “fully and currently informed” of U.S. intelligence activities, including any “significant anticipated intelligence activity”. The Act draws a distinction between Intelligence Activities and “covert” action. Yet, the Administration informed the “Gang of Eight” (which includes 4 democrats) under the covert action standard.
Congress restricted the President’s authority to limit prior notice to only members of the Gang of Eight to findings involving covert actions, provided the President determined that doing so was “...essential...to meet extraordinary circumstances...” affecting U.S. vital interests. The 1991 Act restricted the President’s authority to provide Congress the more limited Gang of Eight prior notices only in situations involving covert action, and not in those situations involving other non-covert action intelligence activities. With regard to intelligence activities, other than those involving covert action, the executive branch was legally obligated to inform “the congressional intelligence committees.
So what is Covert action?
…The term covert action is defined in statute to mean “... an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly...”
Furthermore, a covert action:
…In addition to limiting Gang of Eight limited prior notice authority, P.L. 96-450 included several other covert action program reforms enacted by Congress, the stated intention of which was put in place a more coherent and comprehensive statutory oversight framework for covert action and other intelligence activities. The reforms included the requirements that covert action findings be in writing; a finding may not be retroactive; a finding may not authorize any action that would violate the Constitution or any statute of the United States; and, a finding must identify any third parties (third countries or private parties outside normal U.S. Government controls) who implement a covert action in any significant way.
You can find the discussion of the notification requirements here:
epic.org
So in summary, they didn’t just violate 1 law, they violated 3.
1. They violated FISA, which giving them the benefit of the doubt they thought they needed to protect the Natl Security.
2. But then they violated the National Security Act, by notifying the Gang of Eight and not the full Committees because the program is clearly NOT a covert action but an intelligence activity.
3. Finally, they violated the National Security Act again, because even if they believed that the program was a Covert Action, it violates FISA, violates the 4th Amendment and hence is not a permissible Covert Action under law.
So, to conclude, in my opinion, the good faith excuse, falls flat. If you do not wish to go as far as I, that someone is likely using this program to collect data on political opponents, they are still, operating under a theory of Executive Power, that in my opinion, the Founders Fathers would find even greater than that claimed by the British Monarchy.
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p.s. The whole data-mining, sweep it all up stuff, is bad not good, because (a) you end up with too much data to analyze and so (b) there’s a strong likelihood that the wheat gets lost for the chaff. Requiring warrants is Good, because it forces humans to use judgment to determine where resources should be concentrated that have the highest likelihood of getting relevant data.
Furthermore you get too many false positive. For example, suspected AQ operative on a cell phone in Pakistan misdials a number. He’s intending to call Indonesia. He ends up getting carranza2’s answering machine. The AQ operative never makes that mistake again, and disposes of the “prepaid cell phone” in 24 hours, but C2 and everyone he’s ever called in now in the database and perhaps monitored.
The system is easy to spoof. The logical counter-intelligence action of AQ would be to us auto dialers and spam to overwhelm the monitoring capabilities. A couple of false flag operations using such, and the system is not only overwhelmed, but one ends up monitoring a whole lot of innocent Americans. Just peachy. |
