Friday, December 16, 2005

The Big news today

has got to be this NY Times story on how the Bush administration has authorized the National Security Agency to eavesdrop on Americans and foreigners in the U.S. without court approved warrants. From the article:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

...The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

...Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

...Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

...The N.S.A. domestic spying operation has stirred such controversy among some national security officials in part because of the agency's cautious culture and longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil rights activists - by American intelligence agencies became public in the 1970's and led to passage of the Foreign Intelligence Surveillance Act, which imposed strict limits on intelligence gathering on American soil. Among other things, the law required search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases. The agency, deeply scarred by the scandals, adopted additional rules that all but ended domestic spying on its part.

...Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

And this from EPIC:

Documents obtained by EPIC in a Freedom of Information Act lawsuit
reveal FBI agents expressing frustration that the Office of
Intelligence Policy and Review, an office that reviews FBI search
requests, had not approved applications for orders under Section 215 of
the Patriot Act. A subsequent memo refers to "recent changes" allowing
the FBI to "bypass" the office. EPIC is expecting to receive further
information about this matter.

Under Section 215, the FBI must show only "relevance" to a foreign intelligence or terrorism investigation to obtain vast amounts of personal information. It is unclear why the Office of Intelligence Policy and Review did not approve these applications. The FBI has not revealed this information, nor did it explain whether other search methods had failed.

Congress is now considering whether new safeguards are necessary for 215 investigations before the Patriot Act is renewed. These documents raise important questions about the sufficiency of oversight of the FBI's expanded investigative authorities.

Why is this important? Because what is being addressed is the possibility of eliminating the check against a police state without oversight. I'm not questioning the right or desirable effect of allowing the law enforcement agencies to track down possible terrorists. However, in return for that right, I want some system of oversight that will act as a check against abuse. The courts should provide that and should exercise maximum skepticism to law enforcement's claims in order that it protects the rights of the citizens who, in a democratic society, allow it (the court and law enforcement) to practice in the first place. We have seen in the past how without such checks and balances, agencies or some of their personel have run amok and spied on citizens for no reason what-so-ever. Do we really need to have a discussion again about J. Edgar Hoover, the closeted homosexual head of the FBI, who spied on and persecuted citizens just because they were gay? His example is egregious, but there are plenty like him in law enforcement and plenty more who might "cross the line" just because they feel they might be serving a greater good in society. What else explains, for instance, the behaviour at Abu Ghraib prison?

Also, there is probably plenty to be said about having separate agencies operating in the same area, possibly spying on the same citizenry. We know that the Pentagon does this, we know the FBI does this, and now we know that the NSA is doing this (and the CIA wants to do it). That's 4 agencies spying on Americans and foreign nationals in our own country. I realize that the Fatherland Security department is supposed to oversee and coordinate this, but I'm not confident that it does have control over these areas. Could we, for instance, have spies competing against each other for the same data? Where is the efficiency in that? If I were a terrorist cell, I'd set up the agencies to track one group of people while simultaneously planning and executing my attack. Bait and switch. It's done all of the time.

To add to this long post, I'll note this story which reports that lawmakers want to fence in the U.S. Given the broad police state powers discussed above, is the fence to keep foreigners to the south out of the U.S. citizens in? It doesn't matter, really. In East Germany, the fence was built to keep it's citizens in and west European culture out. In Rome, the walls were built to keep the armed foes out. In the end, both barriers crumbled and empires fell. An empire struggling to keep power at all costs, especially in it's crumbling days, attempts several tactics. Amongst them, they expand police state powers and actively wage a war of fear on their own citizenry. They also build barriers that will "protect" and "comfort" the citizenry, but which does neither as the state is busy continually working it's citizens into a fearful frenzy. Both methods are part of a loop and remind me much of the pictured of the snake that feeds on itself.

Still, there is hope. We do live in a form of democracy in the U.S. We can, if we have the will, snap out of this madness and turn it on it's head before the whole shithole caves in. By nature, I'm a cynic about process and an optimist about the end. In other words, I think we tend to put ourselves through needless suffering and pain before we get to a better spot than we were. My hope is that this is the most painful era of this process and that we'll soon see a turn around. However, seeing as Congressional leaders have been informed of these police state maneuvers, how Congressional leaders have tended to lock, stock, and goose stepped along with this administration into war and the so-called Patriot Act, I fear we're in for a long painful period before it will get better.

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