May 12, 2006

More on NSA Domestic Spying

This morning's New York Times is now online (it's still weird being 7 hours ahead of New York and not having the Times out when I wake up) with more responses to yesterday's NSA domestic spying revelations. Before further discussion, let me clarify something about the NSA's program that seems to have confused some readers on my last post: there seem to be two separate warrantless spying programs. One program listens to international phone calls without warrants. Another program keeps records of the source, destination, time, and duration or all local and long distance phone calls within the United States in a giant database. This last is what came out yesterday. The Times has a good timeline of the spying revelations and official responses to them.

According to the Time, Bush responded to the allegations by saying, "We're not mining or trolling through the personal lives of millions of innocent Americans, our efforts are focused on links to Al Qaeda and their known affiliates." I find this hard to swallow, because they clearly don't have 'probable cause' - if they did, they wouldn't be afraid of their warrants being turned down by FISA courts. Furthermore, since they won't grant security clearance to the Justice Department Office of Professional Responsibility, the NSA now has no accountability whatsoever. They can just do whatever they want.

It seems that some congressional Republicans are defending the action, but the majority leader, John Boehner of Ohio, said he wasn't sure why this information would be necessary to the NSA, and Arlen Specter was trying to sound concerned (pardon my cycnicism) but doesn't seem to have said anything definite. The Democrats are of course making their normal big show of opposing whatever Bush does, which works in our favor in this particular case, but unless the Republicans get upset too (or we boot half of Congress in the mid-term election!) nothing will happen. At least it sounds like they are going to do something. Some of them are saying that this will hurt Bush's nomination of General Michael Hayden, former NSA director, for director of the CIA. What I'm a little worried about is that Hayden may become a scapegoat so they can make a big show of caring by not confirming him, and then not actually fix the problem. At this point I wonder if perhaps we should disband the NSA altogether. This idea is strengthened by the fact that there are all these neo-con bloggers out there reporting on this issue with headlines like "NSA Doing Its Job." If the United States has an agency whose 'job' is to spy on its own citizens (because we citizens and permanent residents of the U.S. are clearly all potential terrorists and threats to our own security!), then American is indeed becoming a police state, or perhaps the 'becoming' phase is over. After all, if the NSA won't let the Justice Department (for whom they are supposed to work!) investigate them, why would they tell the President or Congress the truth? Who's running our country?

Posted by Kenny at May 12, 2006 1:40 PM
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Comments

I sure hope they fix the problem, but I wouldn't agree with you on what would do that. As far as I'm concerned, fixing the problem would involve making it absolutely clear that this sort of thing is legal.

Posted by: Jeremy Pierce at May 12, 2006 2:25 PM

That it's legal for the NSA to do whatever kind of spying they want with no oversight?! All I'm asking is that they go to the FISA court and explain to SOMEONE, ANYONE in the judicial or legislative branches, in private, exactly what surveillance power they need, and go get a warrant. If there really is probable cause to suppose that someone is a terrorist, then by all means the government should monitor that person - with the proper warrants and judicial oversight. They can't participate in wholesale monitoring of EVERYONE. THAT certainly amounts to a 'police state,' particularly when there is no effective oversight outside the executive branch (or even inside, since they won't tell the DOJ what they're doing).

Posted by: Kenny at May 12, 2006 2:40 PM

But the point of this program is that it gives information on who might be related to terrorist activities. It flags certain phone numbers that might be called, and then it looks more closely at those people. Can that be done if you have to have a warrant before looking at the phone records?

Posted by: Jeremy Pierce at May 12, 2006 2:53 PM

Well, a lot of things can't be done in a principled way without violating anyone's rights. Certainly having a police state and constant surveillance would be more efficient at catching terrorists, but the ends do not justify the means. What we have here is 'guilt by association' with a vengeance. Anyone who has ever spoken by phone to a suspected terrorist also becomes a suspect, watched by the NSA. What if the first person turns out to be innocent, and they are now watching him and all his friends? Furthermore, they don't even need probable cause to believe that this first person is a terrorist!

FISA courts are very quick and efficient. Seeing as the phone companies keep these records anyway, I don't see why they couldn't first have probable cause to believe that one person was a terrorist, then get a warrant for his phone records, then investigate the people who talked to him a lot further, and, if they have probable cause for them, get warrants for their phone records as well. This would slow the proces down, but most of the information the NSA has is useless to them anyway. I think they could get all of the actually useful information in this way quickly enough to be effective.

Posted by: Kenny at May 12, 2006 3:03 PM

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