T Nation

New Facts on NSA Surveillance


#1

Jeffrey Risen's - the reporter on the NYT story -- book has now come out, and it has a bunch more facts on the NSA surveillance program.

http://volokh.com/archives/archive_2006_01_01-2006_01_07.shtml#1136361964

New Risen Book Sheds Light on NSA Surveillance Program: In the many debates we've had here at the VC about the NSA's domestic surveillance program, we've been stymied by the lack of facts about how the program works. James Risen's new book, State of War: State of War : The Secret History of the C.I.A. and the Bush Administration ( http://www.amazon.com/gp/product/0743270665/qid=1136358857/sr=8-1/ref=sr_8_xs_ap_i1_xgl14/104-8585545-0622328?n=507846&s=books&v=glance ), was released just today, and it has lots of juicy new facts to ponder. Risen's civil libertarian views are front and center, so the tone isn't exactly balanced, but the new facts make it an incredible read.

Risen's book answers a bunch of our questions about why the program was started, and what it does differently than past NSA surveillance programs. We don't yet have definitive answers to the legal questions, but we have a much sharper picture of the issues. Further, I suspect these disclosures may have an impact on the public opinion; at first blush, at least to me, the new facts seem to present the program in a somewhat more sympathetic light than have some previous reports.

According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.

[i] In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls ? calls that do not begin or end in America ? also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.

In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.

But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air.[/i]

Reading over this part of Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic ? it occurs within the United States ? but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly ? always a big "if" when you post after 2 am ? most of the program did not violate FISA.

Now here's the part I can't quite figure out. If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2). So it seems like there are two possibilities: either the communications were wire communications and the designers of the program thought that the 500 people tapped in the U.S. were of sufficient importance (potential terrorists cells, etc.) that they didn't want to cabin the program to deal exclusively with foreign-to-foreign calls, or else the communications were electronic communications and perhaps the monitoring didn't violate FISA. (Can anyone else tell based on Risen's excerpt whether the communications were wire or radio? Maybe it's just late, but I'm not sure.)

Here's another puzzle to ponder. A few passages in the Risen book suggest that the legal concerns offered by those who leaked this story may be different from the legal concerns that I've been focusing on in my posts. For example, according to the book, "[s]everal government officials who know about the NSA operation have come forward to talk about it because they are deeply troubled by it, . . . [t]hey strongly believe that the president's secret order is in violation of the Fourth Amendment of the Constitution, which prohibits unreasonable searches." Other parts of the book seem Fourth Amendment-focused, as well.

That seems somewhat odd to me, because, as I've explained before, my primary legal concerns are statutory, not constitutional. This raises a couple of different possibilities. For example, it may be that the program doesn't violate FISA after all, and the debate within government has really been about the Fourth Amendment. The concern within some government officials may be that scanning traffic en masse for phone numbers or e-mail addresses of even foreign calls may violate the Fourth Amendment rights of domestic people whose communications are scanned (even only in the passing way that any Internet wiretap must scan all traffic). That is consistent with Risen's claim that "Now that [foreign to] foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States." The "regulations and laws" don't seem to be FISA, as I believe FISA is implicated only when the person monitored is in the United States; could those "laws" be the Fourth Amendment? Are there other "regulations" that govern the NSA that might be implicated here? It's hard to tell. Of course, it's also possible that the Fourth Amendment concerns are a bit of a red herring: the claim may be a cover for other motives. Who knows.

In any event, it's way late, and I'm probably not being very coherent at this hour. More pondering tomorrow. Thanks to Lee Tien for the tip.


#2

I'm doubtful that the hullaballoo was caused because foreign traffic routed through US switches was available for listening.

However, I am curious if in reality traffic is being diverted so that it can be listenen to. Actually, I would assume that is happening, and also that foreign telecommunications and networking companies with US ownership are acting as listening posts directly.

Again, these actions are not the ones that are in the media getting our attention.


#3

http://www.popularmechanics.com/science/defense/1281281.html?page=1&c=y


#4

Wow, the welfare state expands its powers. Who'd have ever foreseen that?
Why would bureaucrats even think of doing such a thing?


#5

Headhunter wrote:
Wow, the welfare state expands its powers. Who'd have ever foreseen that?
Why would bureaucrats even think of doing such a thing?

***What does that mean?


#6

More interesting stuff:

http://therightcoast.blogspot.com/2006/01/data-storage-and-4th-amendment-by-tom.html

Data storage and 4th amendment
By Tom Smith

Jack Balkin has a very good point here: http://balkin.blogspot.com/2005/12/data-storage-and-fourth-amendment.html .

To add to it a little bit, technology on the data mining front is moving very fast. In fact, the term data mining is too narrow and somewhat dated. For just a taste of one cutting edge approach, check this out. This company takes a semantic network approach to unstructured databases. There are other approaches as well.

What I am getting at is, if the government puts together a huge database -- and Jack is absolutely correct; it is within their capabilities, well within -- then with tech from the private sector, not to mention what NSA geniuses come up with, then what they can figure out about individuals, firms, and so on, really does not have any clear limit. It is not at all far fetched to say if the government wanted to, it could know more about people than they know about themselves, a lot more.

There are many questions here. The first is whether the storage of this information violates constitutional protections. I think sensience may make some difference here. If every email you have sent in the last five years is stored in some place the government has access to, but they do not actually access it, then I'm not sure your privacy has been affected at all.

But here is something that worries me, though maybe it shouldn't. Search algorithms are already astonishingly powerful. They are advancing rapidly. It may be possible soon to pull out from such things as patterns of emails, phone calls, puchases and the like, people likely to be involved in drug trafficing, money laundering, whatever. If an impartial algorithm can troll through a database and produce a list of people who really are, to some high degree of probability, connected with herion trafficking say, should that be enough to support a warrant to start the really intrusive, traditional sort of surveillance?

I have already made clear that I think the President should be able to do exactly this if it is necessary to fight a war. But law enforcement agencies doing it does strike me as pretty creepy. It could be an extremely powerful law enforcement tool, though.


#7

Numerous guys on here bitch and moan about our ever-expanding government. Yet they advocate more and more government involvement in our lives (see my Katrina thread). My sarcasm is directed at them -- "Surprise, surprise, surprise, Gomer!! You want and voted for a welfare state to solve all your problems; now you wonder why that government is out of control. Surprise, surprise, surprise!!"


#8

Headhunter,

Most people feel that an appropriate time for government involvement is during times of crisis, to take efforts to protect citizens and maintain the basic functions of society.

I'm not sure what axe you are grinding, but you seem to have real issues with government. Maybe the FBI or the NSA should be keeping an eye on you because you are starting to sound like a radical dissident.

Borrow any incriminating books from the library in the last couple decades?


#9

I agree with that 100%


#10

LOL! Actually, since I know who really killed JFK (his name was Richard Cain, btw) I'm on a watch list.


#11

OK Headhunter,now back to reality.YO!Forgetaboutit!


#12

It was a joke. In the book DOUBLE CROSS, Mooney Giancana (a mob Godfather) kills off JFK and RFK. The hitter on JFK is Richard Cain. All of these people are real and Mooney hated JFK with a passion. Giancana delivered Illinois to JFK, who promptly sent his Attorney General RFK after Giancana.

I don't knpw if the story is true, but I am related to someone who was in Giancana's inner circle and I pretty much believe what they say.

Anyone who'd care about this is dead now, so WTF.


#13

Well, this qualifies as "interesting" anyway...

An NSA Whistleblower Speaks Out
http://www.alternet.org/rights/30387/
[i]
Amy Goodman: Two weeks ago, a former N.S.A. intelligence officer publicly announced he wants to testify before Congress. His name is Russell Tice. For the past two decades he has worked in the intelligence field, both inside and outside of government, most recently with the National Security Agency and the Defense Intelligence Agency. He was fired in May 2005, after he spoke out as a whistleblower.

In his letter, Tice wrote, quote, "It's with my oath as a U.S. intelligence officer weighing heavy on my mind that I wish to report to Congress acts I believe are unlawful and unconstitutional. The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state." Russell Tice joins us now in our Washington studio. Welcome to Democracy Now!

Russell Tice: Good morning.

Amy Goodman: What made you decide to come forward? You worked for the top-secret agency of this government, one that is far larger and even more secret than the C.I.A.

Russell Tice: Well, the main reason is that I'm involved with some certain aspects of the intelligence community, which are very closely held, and I believe I have seen some things that are illegal. Ultimately it's Congress's responsibility to conduct oversight in these things. I don't see it happening. Another reason is there was a certain roadblock that was sort of lifted that allowed me to do this, and I can't explain, but I will to Congress if allowed to.

Amy Goodman: Can you talk about the letter you have written to Congress, your request to testify?

Russell Tice: Well, it's just a simple request under the Intelligence Community Whistleblower Protection Act, which is a legal means to contact Congress and tell them that you believe that something has gone wrong in the intelligence community.
[/i]

Yes, yes, I understand the "source" won't be appreciated, but it is two people talking. There's a lot more than the snippet I quoted if you are in fact interested in this stuff.


#14

Very interesting. Given the Justice Department had started a probe on the leak, the leaker is now looking to protect himself via the whistleblower statutes. Seems like a wise legal strategy to me, if he wants to avoid prison...


#15

Go to jail for what? The Plame investigation was for a specific crime - outing a CIA agent. How is revealing warrantless eavesdropping espionage, or "helping the enemy" (as the president said). Are we to believe that terrorists were not aware that we used wire taps? How does the presence or lack of a warrant affect how terrorists do business? And how does revealing the warrantless eavesdropping compromise national security? Is it because the leaker leaked classified info?


#16

Yes, it is the leaking of highly classified information.

Revealing the existence of a highly classified program fits much more specifically under the Espionage Act than does revealing the identity of a no-longer-undercover analyst.

BTW, it's "helping the enemy" to publicize classified, previously unknown information that helps the enemy to understand how our tracking/surveillance system works. I'm sure that most of us know a heck of a lot more about data mining programs than we did previously -- and about how such data-mining programs could be applied to cell phone communications.

Even more valuable is information on our own analysis of the legal limits of such a program.


#17

Dermo,

You forget, Boston swallows everything hook, line and sinker like the good little talking point follower he is.


#18

Yes vroom,

Very good talking points for why we wouldn't want to release classified national security information. Obviously the only reason to not support the release of classified national security information is partisan adherence to talking points. Would that we all had your superior insights to cut through their obvious irrelevance...


#19

Boston,

Let's figure out what top secret information was released.

All of the programs in use, as you yourself have even pointed out, have been identified by the media in the past, both in the US and overseas.

It is no surprise that the means and methods are available and that they have been in use for many years.

No, what's happened here, is that someone is complaining that the technology has been turned on American citizens.

OMG, security breach!!!


#20

Nicely on-topic, from known right-wing hack Joe Klein in an opinion piece right-wing rag Time Magazine:

http://www.time.com/time/columnist/printout/0,8816,1147137,00.html

EXCERPT:

[i]For too many liberals, all secret intelligence activities are "fruit," and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality - spying on antiwar protesters and civil rights leaders.

...

... At the very least, the Administration should have acted, with alacrity, to update the federal intelligence laws to include the powerful new technologies developed by the NSA.

But these concerns pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them?but also, on the plus side, hampering their ability to communicate with one another.[/i]

emphasis mine