Jeff, one member of the tiny cadre of regular JamulBlog readers, doesn’t agree with my take on the NSA datamining project. His comments are interesting, but long and detailed — it’s clear he’s thought about this topic, and done some reading about it. What follows is a point-by-point commentary on Jeff’s points…
Jeff starts:
I am against this program. I don’t consider myself a Democrat, nor do I consider myself a Republican, I might be a little more liberal than conservative but I don’t fit easily into one place on the political spectrum. There are various reasons why I am against this program, and I’ll try to explain a couple of them here.
Like Jeff, my politics are hard to characterize in a single label. I have no party affiliation. On the political spectrum, I’d make a three-dimensional one (libertarian, liberal, conservative) — and in that world, I’d be partway from the center toward the libertarian/conservative corner, a bit closer to libertarian…
I don’t know about the legality of this. I’ve heard the President and the phone companies say everything they’re doing is within the law, and I’ve heard the law professors say that they can’t think of a way this would be done legally.
I’ve not read any credible source (I don’t count lamestream media talking heads amongst these, nor do I count the ACLU) arguing that the NSA’s datamining project is clearly illegal; Jeff doesn’t cite any so I don’t have any way to rebut them. I have read several very credible sources that either defend the legality of the project, or that say the relevant law is confused or conflicting. Powerline has an interesting discussion here citing some law that seems to clearly give the government the right to those phone records in a terrorist investigation — but it’s not clear exactly what is meant by “terrorist investigation” (a good example of the ambiguity in the law). Does “terrorist investigation” mean some specific investigation of some specific terrorist incident? Or may it also mean the general investigation of terrorists? Orin Kerr, posting at the Volokh Conspiracy, has an extended discussion about the legality of the data mining effort, full of complex detail — but not full of certainty. These two posts are the best examples I’ve found of credible uncertainty with respect to the legality of the NSA datamining project. All the other credible sources I’ve read are persuaded that it is fully legal.
I’ll leave this topic with one last comment: if it turns out to be the case that the NSA’s project is illegal under current law, then I believe the law should be changed. I want the NSA pursuing efforts like these to track down terrorists — and I am completely unworried about any loss of my privacy due to the government having my billing records. As the aforementioned Powerline post notes (along with a bazillion others): I have already given up any real privacy to those records long ago — the phone companies are free as a matter of law to give (or sell) those records to anyone they like, except the government (which of course the NSA is part of). We already have no privacy with respect to those records.
[R]egardless of the legality, why didn’t congress know this was going on? Regardless of political affiliation it seems many congressmen were caught very off guard by this and are now asking questions (among them, why didn’t we know about this?). It’s one thing to keep a program like this secret by not telling the public about it. It’s another thing to keep it so secret that many (if not all) members of the legislative branch don’t know about it.
On this point I believe Jeff is simply misinformed. The normal process for classified operations is that a small group of specifically designated legislators — selected by their peers — are given clearances and special access consistent with their oversight responsibilities. This program was disclosed to them (as the members of the oversight committee have publicly affirmed). The fact that it was not disclosed to other legislators is the perfectly normal way we handle our clandestine affairs, for so many obvious and good reasons that I won’t even try to debate them here. I will point you to a Hot Air segment that looks at the NSA’s Cryptologic Museum — and touches on this need for secrecy at the end.
On a related point, it’s worth noting that the NSA’s data mining project has been public for almost six months — it’s not “new” news. For example, the New York Times wrote about it last December. It’s in the news now because those moonbat lapdogs in the lamestream media believe that stirring up a fuss about the NSA’s programs will help defeat General Hayden’s nomination as CIA Director (General Hayden oversaw the implementation of those NSA programs). As best I can determine, the existence of the NSA program was first leaked in late summer of last year. The only elements leaked recently (that I know of) are the names of the participating companies.
A second point, related to the first is that Alberto Gonzalez, when testifying before congress (although not under oath, why not?) about the previous information to come out about NSA wiretapping citizens in the US making or receiving international calls (without a warrant, even though the FISA would allow them to do it, then get a warrant up to 72 hours after the fact) told congress that the NSA program was very limited in scope. While these two programs are not identical, they are somewhat similar.
I will respectfully disagree with Jeff on this point — I don’t believe that the programs are similar at all. Mr. Gonzalez was testifying about wiretapping operations, wherein the NSA was actually listening to the conversations. Wiretapping and call records are covered by very different law, very different procedures, and are completely different programs.
As to Mr. Gonzalez not testifying under oath — my understanding is that such “informational” testimony is normal when seeking information from legal representatives (and Mr. Gonzalez was President Bush’s representative). I’m no expert on this, but I’ve been told that this maneuver is the agreed way to handle the conflicts of interest that are intrinsic in such testimony, especially with regard to the full disclosure obligations inherent in testifying under oath (the famous “full truth” clause). One thing I do know is that many attorneys, for presidents (and other government officials) of both parties have made use of this process. Remember Ron Brown, Clinton’s Commerce Secretary? He was under investigation on corruption charges (and likely would have been indicted); during the investigation his attorney testified before Congress — but not under oath.
I can think of some scenarios where this database could be dangerous to the privacy of Americans, although I do agree that it alone is not nearly as bad as many people think it is. But I don’t like the direction things are going. While they might only have a phone number in a database, it isn’t difficult at all to find out whom that phone number belongs to (especially if the phone companies are so willing to cooperate).
Unlike Jeff, I have trouble thinking of any scenario where disclosure of phone numbers and names (I believe the NSA has the names as part of their database) is a privacy concern. It’s not as though the government doesn’t know who we are and where we live today. And remember — we already have no right to privacy with respect to disclosure of that data to non-government entities. In other words, the phone companies already have the right (which they use routinely!) to sell that information to other non-governmental parties.
I’d like to hear Jeff’s troublesome scenario…
Every time I hear someone make this argument (that our anti-terrorist efforts are violating our civil rights), I go through a thought exercise with two parts:
— Can I convince myself that the program is likely to yield results?
— Does the benefit outweigh the impact to my civil rights?
On that first point, I have no trouble convincing myself that the NSA’s datamining project could yield valuable intelligence. To cite just one example: suppose that (through other intelligence efforts) the NSA knows the cell phone number for a fire-breathing imam in Pakistan. There’s an obvious direct benefit to mining this database to find out all the conversations anyone in the US has had with this imam. There will be innocent conversations (probably the majority) in that mix — but surely not all of them would be. But even more interesting — and this is enabled by the datamining — would be to look for patterns in the various parties called. For example, suppose that it turns out (in the preceding example) that the imam had talked with 100 people in the US — and 5 of those people had all talked to the same previously unknown phone number in Iraq. I would hope that our intelligence services are pursuing information like that!
On the second point, since I see no negative impact on my civil rights because of the NSA’s datamining project, and I do see a benefit — then clearly the balance looks positive to me.
One thing I always wonder when I hear people concerned about civil liberties threats: where, exactly, do they see the threat? Jeff cites nothing specific — just “…I don’t like the direction things are going…” — and, so far as I can tell, the same is true for all the politicians (primarily Democrats, which is hard to ignore) hollering about it. I’d like for someone to tell me exactly what rights of mine are in such danger. And I’d especially like them to explain to me how that danger (assuming someone can even identify it for me) is anything even approximating the magnitude of the danger we all face from radial Islamic terrorists.
I think what’s really going on with most of these politicians is a combination of two things: simple partisanship, rising above patriotic concern for the country’s welfare, and a disbelief in the clear and present danger of radical Islam. The barking moonbat liberal wing of American polity has, I’m afraid, adopted the former tactic and latter belief. When I hear someone like Schumer, McCain, Daschle, or Kennedy speak on subjects like this…I simply cannot believe that they are sincere in their patriotism.
Last, just like I think the dangers of the program are somewhat overblown, I also think the dangers to national security by this program being uncovered are overblown as well. I like to think that the real bad guys aren’t making phone calls and communicating over the internet in the same way normal people do (if so I would hope they would have been caught long ago). My guess is that they’re using strong encryption online and pre-paid cell phones that can’t be traced back to them when they need to communicate over the phone or internet. So this program doesn’t directly affect them. So you have to question exactly what this program is doing, and why the fact that it’s known is so harmful to our security. I can think of one possible thing this program is doing to protect our national security: analyzing the phone call links of those people that aren’t directly a threat, but might know someone that is (whether they know that person is or not). These are people that feel they have nothing to hide, if they did have intentions to commit crimes they would be taking measures to protect themselves like I mentioned above. So even with this information out in the open that the NSA is creating a database of our phone records, they aren’t going to feel the need to change anything, and the NSA will still get all the data just as they did before.
Jeff’s essential point here is that (my rewording) the bad guys aren’t stupid enough to be caught by programs like this, so disclosing the existence of the program isn’t such a big deal.
On this point I believe that Jeff is badly misinformed. There are many examples in the public record of exactly this kind of intelligence exploitation of stupid procedure by the bad guys. Perhaps the most famous of these amongst the terrorists was Bin Laden’s use of unencrypted satellite phones — until, that is, our interception of his calls was disclosed by our press (and after they were asked not to do so!). During the Afghanistan invasion, we made extensive use of cell phone intercepts where the bad guys things so stupid as to pass belief (such as discussing specific tactics and timing of impending attacks); this is well documented in the public record. Here in the U.S., law enforcement officials have publicly (and loudly!) complained about the disclosure of (to my knowledge) “dumpster diving” operations (examining the garbage of suspects for clues), credit card transaction history examinations, EZ pass history datamining, and specific surveillance techniques. Sorry, Jeff — but it is incontrovertably true that the bad guys often do stupid things — and that those stupid things are exploitable //only so long as the fact that we’re exploiting them is secret.//
As to the terrorists use of strong encryption (and other technological means for maintaining secrecy): I would recommend (for anyone) a careful reading of Bruce Schneier’s books — especially his more recent volumes. Mr. Schneier is a world-renowned cryptanalyst (whom I once had the distinct pleasure of meeting). After years of work in his field, he figured out a basic truth: the flaws in most systems for secrecy are in process and human participation. They are far more vulnerable to social engineering attacks and exploitation of stupid behavior than they are to technical attack. His books, and the insights they contain, are sobering material for anyone interested in security.
I can add to that my own experiences in the U.S. Navy. I won’t describe specifics here, for obvious reasons. The ship I was on (the U.S.S. Long Beach) was nuclear powered, and sometimes carried nuclear weapons. Security was a concern. Several times a year, friendly pseudo-adversaries (I believe they were operatives of the NIS) attempted to penetrate the “secure spaces” on the ship. These included the radio room (where highly classified traffic could be found), the Combat Information Center (where I normaly worked), and the missile rooms (where nuclear warheads could be found). These penetration attempts were made by unarmed men who either talked their way in (a social engineering attack) or who directly exploited stupid behavior amongst the sailors. In my four years on the ship, these teams succeeded each and every time. My point: even the good guys, allegedly well-trained and disciplined, have stupid behaviors that can be exploited. But only so long as we don’t know they’re being exploited…
I also don’t understand why you and Rick Morgan among others are so quick to dismiss the potential for abuse. There is a potential for abuse, I don’t have any credible evidence that this database will be abused, but you don’t have any way of ensuring that it won’t be abused. Is there anything to stop the government from using this database for analyzing the calling habits of groups that are in no way affiliated with al qaeda? Would you still be in support of this program if it did include names associated with the phone numbers? What if it included gps tracking data from cell phones (the FCC requires all new cell phones to include gps tracking units)? Is there anything to prevent this sort of data collection in the future?
The key to understanding how I respond to Jeff’s points above is this: the word “potential”. I don’t give a hoot about “potential abuse", and I’ll dismiss it all day long. To make my point in an exteme way: there an awful lot of potential abuse in an aircraft carrier. Just think what mischief a rogue captain could pursue! Let’s ban aircraft carriers!
What I do care about is actual abuse. Through all the liberal hysteria, I have yet to hear about a single case of signifcant civil rights abuse of U.S. citizens occurring in the war on terror. If and when such abuse occurs, then I’d be all for prosecuting the sorry sack of s__t who did it the fullest extent of the law.
Hah! I just thought of an even better example to make my point. Duke Cunningham is in jail because of his actual abuse of our laws — and I’ll be a happy guy if he dies in prison. Harsh, aren’t I? But just think of all the potential abuse represented by every other porking Congressman or Senator! We’d better jump on that one right away, and ban those folks from office!
Almost anything has the potential for abuse. Who cares? What matters, really, is what is abused.
And please remember, it’s not only the American left that is up in arms over this program. Arlen Specter was asking questions about it, and said he plans to have congressional hears over the program. He is not a crazy American left “Moonbat” but rather a Republican senator.
Arlen Specter not a moonbat? Puh-lease, Jeff, cut me a break. I can hear him barking even way out here in Jamul <smile>! Senator Specter is the king of the RINOs (Republicans In Name Only), and almost a caricature of the posturing politician who sees almost anything strictly in terms of how he can best leverage it politically. To me, he and McCain are the best two examples of that species within the Republican part (though certainly not the only ones, by any means). For reasons I don’t even begin to understand, the Democratic party seems to be blighted with large numbers of these despicable creatures — Tom Daschle and Ted Kennedy being prime examples…
This is not entirely related, but not completely unrelated, I have to wonder and will ask, what is your take on using encryption on the internet? Obviously the bad guys use it, should be try to prevent that? Should we try to prevent the non-bad guys from using encryption so that all of the encrypted traffic the NSA collects is from bad guys and they don’t waste their time cracking unimportant communications?
I think trying to prevent the use of encryption on the Internet is an exercise in futility. That particular cat is completely out of the bag and running around like crazy — industrial-strength encryption technology is widely and openly available (for free, even). This includes even the technology for undetectably hidden encrypted messages (steganography). This means that anybody who wants to know how to send secure messages already has access to the technology required to do so — there’s nothing we can do to prevent its use, or even to detect its use (if the user even bothers to hide it).
Really this is another of those “potential for abuse” issues — should we ban encryption because some bad guy might use it? As a matter of philosophy, my reflexive response to any such situation is “Hell, no! You prosecute the abuser, by appropriate means in the circumstances.” Wanting to “protect” us all from all “potential dangers” is very much a liberal mindset — and very contrary to a libertarian mindset. Please don’t “protect” me from encryption — or guns, or NSA datamining.
... What is your take on this story: Is there any reason for this denial of clearance? These are DOJ lawayers that seemingly should have the proper authority to look into this matter. Who denied them the clearance? This is one example of a reason I am weary about the story above.
This was news to me; I had to follow your link (and do some Googling) to get informed. There are several interesting threads on this one:
— According to the news reports, it was the NSA who denied the lawyers a clearance. Having been in the military, with a security clearance, I can tell you this much: clearances are denied to individuals, not categories of people. I will not presume that the NSA is acting in bad faith — their job is to protect us, and part of that job includes deciding who is trustworthy enough to get a clearance. I have no idea who those lawyers were, but I am perfectly willing to go with the NSA’s judgement about their trustworthiness. No news report suggested that no lawyer could get clearances, just not these lawyers.
— Hinchey (the New York Democratic Congressman pushing for the investigation that got shut down for lack of clearance) is one of a group of Democrats who can be counted on to object to just about anything President Bush does. This time (on the NSA wiretaps — not the case we’re discussing above), however, he’s opened a hornet’s nest that the Democratic party leaders have been rapidly distancing themselves from — because the public’s reaction to the NSA Al Qaida wiretaps is so overwhelmingly positive. So from a Democratic political perspective, the best thing that could happen to Hinchey’s investigation is that it get shut down by the Bush administration (or at least appear to have done so). So with my jaundiced political maneuvering weather eye, I suspect that Hinchey leaped on the denial of clearances as an excuse.
— A corollary to the above is that Karl Rove, I’m sure, would like nothing more than for this investigation to continue — in the most public possible way. From a political perspective, the NSA’s Al Qaida wiretap program is a stunning success — what could be better for the Republicans than the public spectacle of the Democrats railing against it? I can see the campaign ads now…
Nope, it makes no sense for Republicans to be maneuvering behind the scenes to deny these clearances. A far more plausible scenario is this: the particular lawyers who applied for a clearance were denied that clearance for some good reason, and the Democrats seized on that as a way to exit from the investigation in a politically advantageous way.
Don’t you just hate this stuff? I pine for the days (if they ever really existed) when our government was full of men there to serve their country, to give back a little — instead of the power and money driven political culture we have today…
