NSA and eavesdropping

[Fezmid]

(of course some will dismiss it because Bruce Sneier isn't a REAL security person )

 

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NSA and Bush's Illegal Eavesdropping

 

(Note: I wrote this essay in the days after the scandal broke.)

 

When President Bush directed the National Security Agency to secretly

eavesdrop on American citizens, he transferred an authority previously

under the purview of the Justice Department to the Defense Department

and bypassed the very laws put in place to protect Americans against

widespread government eavesdropping. The reason may have been to tap

the NSA's capability for data-mining and widespread surveillance.

 

Illegal wiretapping of Americans is nothing new. In the 1950s and '60s,

in a program called "Project Shamrock," the NSA intercepted every

single telegram coming into or going out of the United States. It

conducted eavesdropping without a warrant on behalf of the CIA and

other agencies. Much of this became public during the 1975 Church

Committee hearings and resulted in the now famous Foreign Intelligence

Surveillance Act (FISA) of 1978.

 

The purpose of this law was to protect the American people by

regulating government eavesdropping. Like many laws limiting the power

of government, it relies on checks and balances: one branch of the

government watching the other. The law established a secret court, the

Foreign Intelligence Surveillance Court (FISC), and empowered it to

approve national-security-related eavesdropping warrants. The Justice

Department can request FISA warrants to monitor foreign communications

as well as communications by American citizens, provided that they meet

certain minimal criteria.

 

The FISC issued about 500 FISA warrants per year from 1979 through

1995, and has slowly increased subsequently -- 1,758 were issued in

2004. The process is designed for speed and even has provisions where

the Justice Department can wiretap first and ask for permission later.

In all that time, only four warrant requests were ever rejected: all in

2003. (We don't know any details, of course, as the court proceedings

are secret.)

 

FISA warrants are carried out by the FBI, but in the days immediately

after the terrorist attacks, there was a widespread perception in

Washington that the FBI wasn't up to dealing with these new threats --

they couldn't uncover plots in a timely manner. So instead the Bush

administration turned to the NSA. They had the tools, the expertise,

the experience, and so they were given the mission.

 

The NSA's ability to eavesdrop on communications is exemplified by a

technological capability called Echelon. Echelon is the world's largest

information "vacuum cleaner," sucking up a staggering amount of voice,

fax, and data communications -- satellite, microwave, fiber-optic,

cellular and everything else -- from all over the world: an estimated 3

billion communications per day. These communications are then processed

through sophisticated data-mining technologies, which look for simple

phrases like "assassinate the president" as well as more complicated

communications patterns.

 

Supposedly Echelon only covers communications outside of the United

States. Although there is no evidence that the Bush administration has

employed Echelon to monitor communications to and from the U.S., this

surveillance capability is probably exactly what the president wanted

and may explain why the administration sought to bypass the FISA

process of acquiring a warrant for searches.

 

Perhaps the NSA just didn't have any experience submitting FISA

warrants, so Bush unilaterally waived that requirement. And perhaps

Bush thought FISA was a hindrance -- in 2002 there was a widespread but

false belief that the FISC got in the way of the investigation of

Zacarias Moussaoui (the presumed "20th hijacker") -- and bypassed the

court for that reason.

 

Most likely, Bush wanted a whole new surveillance paradigm. You can

think of the FBI's capabilities as "retail surveillance": It eavesdrops

on a particular person or phone. The NSA, on the other hand, conducts

"wholesale surveillance." It, or more exactly its computers, listens to

everything. An example might be to feed the computers every voice, fax,

and e-mail communication looking for the name "Ayman al-Zawahiri." This

type of surveillance is more along the lines of Project Shamrock, and

not legal under FISA. As Sen. Jay Rockefeller wrote in a secret memo

after being briefed on the program, it raises "profound oversight issues."

 

It is also unclear whether Echelon-style eavesdropping would prevent

terrorist attacks. In the months before 9/11, Echelon noticed

considerable "chatter": bits of conversation suggesting some sort of

imminent attack. But because much of the planning for 9/11 occurred

face-to-face, analysts were unable to learn details.

 

The fundamental issue here is security, but it's not the security most

people think of. James Madison famously said: "If men were angels, no

government would be necessary. If angels were to govern men, neither

external nor internal controls on government would be necessary."

Terrorism is a serious risk to our nation, but an even greater threat

is the centralization of American political power in the hands of any

single branch of the government.

 

Over 200 years ago, the framers of the U.S. Constitution established an

ingenious security device against tyrannical government: they divided

government power among three different bodies. A carefully thought out

system of checks and balances in the executive branch, the legislative

branch, and the judicial branch, ensured that no single branch became

too powerful.

 

After watching tyrannies rise and fall throughout Europe, this seemed

like a prudent way to form a government. Courts monitor the actions of

police. Congress passes laws that even the president must follow. Since

9/11, the United States has seen an enormous power grab by the

executive branch. It's time we brought back the security system that's

protected us from government for over 200 years.

 

A version of this essay originally appeared in Salon:

< http://www.salon.com/opinion/feature/2005/...0/surveillance/ >

 

Text of FISA:

< http://www.law.cornell.edu/uscode/html/usc...10_36_20_I.html > or < http://tinyurl.com/d7ra4 >

 

Summary of annual FISA warrants:

< http://www.epic.org/privacy/wiretap/stats/fisa_stats.html >

 

Rockefeller's secret memo:

< http://talkingpointsmemo.com/docs/rock-cheney1.html >

 

Much more here:

< http://www.schneier.com/blog/archives/2005...nd_bushs_i.html >

[Fezmid]

Similar lines, but focusing on the executive branch and not about one specific event:

 

----------------------------------------------------------------------------

The Security Threat of Unchecked Presidential Power

 

 

 

Last Thursday [15 December 2005], the "New York Times" exposed the most

significant violation of federal surveillance law in the post-Watergate

era. President Bush secretly authorized the National Security Agency to

engage in domestic spying, wiretapping thousands of Americans and

bypassing the legal procedures regulating this activity.

 

This isn't about the spying, although that's a major issue in itself.

This is about the Fourth Amendment protections against illegal search.

This is about circumventing a teeny tiny check by the judicial branch,

placed there by the legislative branch, placed there 27 years ago -- on

the last occasion that the executive branch abused its power so broadly.

 

In defending this secret spying on Americans, Bush said that he relied

on his constitutional powers (Article 2) and the joint resolution

passed by Congress after 9/11 that led to the war in Iraq. This

rationale was spelled out in a memo written by John Yoo, a White House

attorney, less than two weeks after the attacks of 9/11. It's a dense

read and a terrifying piece of legal contortionism, but it basically

says that the president has unlimited powers to fight terrorism. He can

spy on anyone, arrest anyone, and kidnap anyone and ship him to another

country ... merely on the suspicion that he might be a terrorist. And

according to the memo, this power lasts until there is no more

terrorism in the world.

 

Yoo starts by arguing that the Constitution gives the president total

power during wartime. He also notes that Congress has recently been

quiescent when the president takes some military action on his own,

citing President Clinton's 1998 strike against Sudan and Afghanistan.

 

Yoo then says: "The terrorist incidents of September 11, 2001, were

surely far graver a threat to the national security of the United

States than the 1998 attacks. ... The President's power to respond

militarily to the later attacks must be correspondingly broader."

 

This is novel reasoning. It's as if the police would have greater

powers when investigating a murder than a burglary.

 

More to the point, the congressional resolution of Sept. 14, 2001,

specifically refused the White House's initial attempt to seek

authority to preempt any future acts of terrorism, and narrowly gave

Bush permission to go after those responsible for the attacks on the

Pentagon and World Trade Center.

 

Yoo's memo ignored this. Written 11 days after Congress refused to

grant the president wide-ranging powers, it admitted that "the Joint

Resolution is somewhat narrower than the President's constitutional

authority," but argued "the President's broad constitutional power to

use military force ... would allow the President to ... [take] whatever

actions he deems appropriate ... to pre-empt or respond to terrorist

threats from new quarters."

 

Even if Congress specifically says no.

 

The result is that the president's wartime powers, with its armies,

battles, victories, and congressional declarations, now extend to the

rhetorical "War on Terror": a war with no fronts, no boundaries, no

opposing army, and -- most ominously -- no knowable "victory."

Investigations, arrests, and trials are not tools of war. But according

to the Yoo memo, the president can define war however he chooses, and

remain "at war" for as long as he chooses.

 

This is indefinite dictatorial power. And I don't use that term

lightly; the very definition of a dictatorship is a system that puts a

ruler above the law. In the weeks after 9/11, while America and the

world were grieving, Bush built a legal rationale for a dictatorship.

Then he immediately started using it to avoid the law.

 

This is, fundamentally, why this issue crossed political lines in

Congress. If the president can ignore laws regulating surveillance and

wiretapping, why is Congress bothering to debate reauthorizing certain

provisions of the Patriot Act? Any debate over laws is predicated on

the belief that the executive branch will follow the law.

 

This is not a partisan issue between Democrats and Republicans; it's a

president unilaterally overriding the Fourth Amendment, Congress and

the Supreme Court. Unchecked presidential power has nothing to do with

how much you either love or hate George W. Bush. You have to imagine

this power in the hands of the person you most don't want to see as

president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael

Moore or Ann Coulter.

 

Laws are what give us security against the actions of the majority and

the powerful. If we discard our constitutional protections against

tyranny in an attempt to protect us from terrorism, we're all less safe

as a result.

 

This essay was published on December 21 as an op-ed in the "Minneapolis

Star Tribune."

< http://www.startribune.com/562/story/138326.html >

 

Here's the opening paragraph of the Yoo memo. Remember, think of this

power in the hands of your least favorite politician when you read it:

 

"You have asked for our opinion as to the scope of the President's

authority to take military action in response to the terrorist attacks

on the United States on September 11, 2001. We conclude that the

President has broad constitutional power to use military force.

Congress has acknowledged this inherent executive power in both the War

Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at

50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed

by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224

(2001). Further, the President has the constitutional power not only to

retaliate against any person, organization, or State suspected of

involvement in terrorist attacks on the United States, but also against

foreign States suspected of harboring or supporting such organizations.

Finally, the President may deploy military force preemptively against

terrorist organizations or the States that harbor or support them,

whether or not they

can be linked to the specific terrorist incidents of September 11."

 

There's a similar reasoning in the Braybee memo, which was written in

2002 about torture:

 

Yoo memo:

< http://www.usdoj.gov/olc/warpowers925.htm >

 

Braybee Memo:

< http://www.washingtonpost.com/wp-srv/natio...jinterrogationm

emo20020801.pdf >

 

This story has taken on a life of its own. But there are about a

zillion links and such listed here:

< http://www.schneier.com/blog/archives/2005...urity_th_1.html >

I am especially amused by the bit about NSA shift supervisors making

decisions legally reserved for the FISA court.

[Live&DieBillsFootball]

Yeah, but this is a Republican President, so we can trust him to only use this for good purposes.

[Mickey]

Yeah, but this is a Republican President, so we can trust him to only use this for good purposes. 

588136[/snapback]

Exactly. As long as abortion is made illegal, queers can't marry, 4 year olds can buy grenades and taxes are cut, who cares about the rest?

 

Constitution-Schmonstitution.

[Alaska Darin]

Exactly.  As long as abortion is made illegal, queers can't marry, 4 year olds can buy grenades and taxes are cut, who cares about the rest? 

 

Constitution-Schmonstitution.

588780[/snapback]

Now whine openly about fear mongering and sloganeering.

[Mickey]

Now whine openly about fear mongering and sloganeering.

589253[/snapback]

Personal, as usual.

 

Mickey=bad Excellent point.

[KRC]

Now whine openly about fear mongering and sloganeering.

589253[/snapback]

 

Shhh...you are not allowed to point out his hypocrisy. You will hurt his delicate feelings.

[Mickey]

Shhh...you are not allowed to point out his hypocrisy. You will hurt his delicate feelings.

589274[/snapback]

Maybe you could point out any allegations in my first post that are not correct?

 

Are Republicans not against gay marriage, gun control and legalized abortion? Aren't they for tax cuts? Maybe you should read their party platform sometime. Is it unfair or meanspirited to be critical of a party for its avowed positions or are you declaring that to be off limits?

 

While you are at it, why don't you point out where in my post I personally attacked anyone as did AD in his response.

[KRC]

gun control

 

Point out where the Republicans are in favor of 4 year olds buying grenades, as stated in your post.

 

Aren't they for tax cuts?

 

Holy Hell!! Tax Cuts!!! How dare the government cut taxes!!

 

 

While you are at it, why don't you point out where in my post I personally attacked anyone as did AD in his response.

589395[/snapback]

 

You are against Republicans using fear-mongering, but yet you use fear mongering in your post (4 year olds buying grenades sound familiar?). That is called hypocrisy.

[Mickey]

Point out where the Republicans are in favor of 4 year olds buying grenades, as stated in your post.

Holy Hell!! Tax Cuts!!! How dare the government cut taxes!! 

 

While you are at it, why don't you point out where in my post I personally attacked anyone as did AD in his response.

589395[/snapback]

 

 

You are against Republicans using fear-mongering, but yet you use fear mongering in your post (4 year olds buying grenades sound familiar?). That is called hypocrisy.

589674[/snapback]

 

I see, so you took the exagerration to make a point on opposition to firearms regulations about 4 year olds and grenades as a statement meant as actual fact? Sorry, never imagined anyone could possibly interpret that any way other than intended. I'll try to account for that level of stupidity next time.

 

As for tax cuts, whether they are good, bad or indifferent is a separate question from whether or not I was accurate in tagging that as a republican position.

 

So is that it? Is that all you have in contesting the accuracy of the post?

 

As for personal attacks, lets see, "whine", "fear mongering" and "hypocrisy" seem to qualify. None of those comments/insults have anything to do with the accuracy of the post. What did any of that have to do with whether or not republicans are against gay marriage, legalized abortion, gun regulation and for tax cuts? What did any of that have to do with the notion that as long as the republican party is solid on those issues, their rank and file don't care what happens with wiretaps?

 

Oh yeah, nothing.

 

This is soooo much fun. I post something, anything, and the AD/KRC tag team immediately follows with mickey=bad posts. As much as I enjoy the flattery all this attention brings, it is getting kind of boring.

[KRC]

589395[/snapback]

I see, so you took the exagerration to make a point on opposition to firearms regulations about 4 year olds and grenades as a statement meant as actual fact?  Sorry, never imagined anyone could possibly interpret that any way other than intended.  I'll try to account for that level of stupidity next time.

589711[/snapback]

 

You're just not happy that you were called on your hypocrisy. Now, you are trying to spin your way out of it. Nice try, but it didn't work. Keep going though. If you can deflect things enough, maybe people will forget about it. Right?

[KD in CA]

589395[/snapback]

I see, so you took the exagerration to make a point on opposition to firearms regulations about 4 year olds and grenades as a statement meant as actual fact? 

 

 

Then why the need for the absurd exagerration? IMO, using that tactic as a means to make your opponent look crazy only serves to discredit your arugument.

 

I notice you also took the high road on the "Constitution-Schmonstitution" comment....apparently indicating that conservatives don't care about the Constitution because they support the (absurdly exagerrated) points that you list. But out of the items on your list, isn't the right to bear arms (which you attacked via the grenade totting 4 year old) the only one actually protected by the Constitution?

 

I'm not a lawyer, so maybe you can explain how someone being anti abortion and anti queer marriage makes someone anti Constitution.

[Alaska Darin]

589395[/snapback]

I see, so you took the exagerration to make a point on opposition to firearms regulations about 4 year olds and grenades as a statement meant as actual fact?  Sorry, never imagined anyone could possibly interpret that any way other than intended.  I'll try to account for that level of stupidity next time. 

 

As for tax cuts, whether they are good, bad or indifferent is a separate question from whether or not I was accurate in tagging that as a republican position. 

 

So is that it?  Is that all you have in contesting the accuracy of the post?

 

As for personal attacks, lets see, "whine", "fear mongering" and "hypocrisy" seem to qualify. None of those comments/insults have anything to do with the accuracy of the post.  What did any of that have to do with whether or not republicans are against gay marriage, legalized abortion, gun regulation and for tax cuts?  What did any of that have to do with the notion that as long as the republican party is solid on those issues, their rank and file don't care what happens with wiretaps?

 

Oh yeah, nothing.

 

This is soooo much fun.  I post something, anything, and the AD/KRC tag team immediately follows with mickey=bad posts.  As much as I enjoy the flattery all this attention brings, it is getting kind of boring.

589711[/snapback]

Spin, spin, spin. Nothing more than continued hypocrisy with the veil of "whoa is me, I'm a victim."

[Fezmid]

What do any of these posts have to do with the topic I started?

[Crap Throwing Monkey]

What do any of these posts have to do with the topic I started? 

590307[/snapback]

 

Shut up. Your thread's been hijacked; you have no business being here anymore.

[Fezmid]

Shut up.  Your thread's been hijacked; you have no business being here anymore. 

590317[/snapback]

After the first post, no less

 

Here's another story about the NSA stuff. EFF is suing AT&T.

http://yro.slashdot.org/yro/06/01/31/2222236.shtml

 

CW

[Crap Throwing Monkey]

After the first post, no less

 

Here's another story about the NSA stuff.  EFF is suing AT&T.

http://yro.slashdot.org/yro/06/01/31/2222236.shtml

 

CW

590319[/snapback]

 

I predict that lots of lawyers are going to get filthy stinking rich off this issue, lots of people are going to get checks for $1.17 from class-action lawsuits, and the wiretaps will continue regardless while no one gets around to discussing the real issuse involved.

 

GOD I love this country!

[Fezmid]

I predict that lots of lawyers are going to get filthy stinking rich off this issue, lots of people are going to get checks for $1.17 from class-action lawsuits, and the wiretaps will continue regardless while no one gets around to discussing the real issuse involved.

 

GOD I love this country! 

590321[/snapback]

EFF is non-profit, so they're lawyers aren't getting rich. The AT&T Lawyers are probably all on retainer, so they're already rich.

[Crap Throwing Monkey]

EFF is non-profit, so they're lawyers aren't getting rich.  The AT&T Lawyers are probably all on retainer, so they're already rich.

590383[/snapback]

 

Unless EFF's lawyers are employees of EFF (possible, I don't know), they're getting rich. Lawyers get paid, that's why they take cases.

[Fezmid]

Unless EFF's lawyers are employees of EFF (possible, I don't know), they're getting rich.  Lawyers get paid, that's why they take cases.

590395[/snapback]

Ever hear of pro-bono?

 

And as far as I know, I think the lawyers ARE employed by EFF. I did a quick search and found several different articles about different cases that basically said:

 

"Attorneys from the Electronic Frontier Foundation (EFF), representing the three news organizations, argued Apple had not used all possible means in finding out the sources for the leak and should not be allowed access to information on the servers of the Web sites."

 

Not "attorneys working for EFF," but FROM EFF. So I'm not 100% sure, but it's a pretty good bet.

 

CW