Common Sense About the NSA “Scandal”

[thedrifter]

Common Sense About the NSA “Scandal”
January 3rd, 2006
Herbert E. Meyer

The choreography of Washington “scandals” has become as precise – and as predictable – as a performance by the Radio City Music Hall Rockettes. And the latest so-called scandal – this one over disclosures that the NSA has been eavesdropping without warrants on international phone calls and emails between Americans and terrorists – is no exception.

First comes the leak itself, which is quickly followed by squeals of outrage by the President’s political opponents. Administration officials then jump in to provide an inept and painfully inarticulate defense of the President’s actions. Then come the television talk-show shouting matches, featuring solos by our country’s apparently-inexhaustible supply of perky blonde “political strategists” armed with talking points and teeth like Chicklets. This is followed by a barrage of learned and unreadable essays by legal scholars on both sides of the issue, always citing laws no one had previously heard of, and quotes from The Federalist Papers so obscure that James Madison himself probably couldn’t tell you what he’d meant. Then the Senate and the House each promise to hold hearings, and finally – last Friday, in fact – the Justice Department announces that it’s launched an investigation to determine who disclosed the secret project.

All this sets the stage for a stupendous finale of televised hearings, a grand jury, the jailing of one or two reporters who will portray themselves as martyrs to the First Amendment – while skillfully parlaying their martyrdom into million-dollar book deals – and perhaps even the indictment for perjury of some preppy third-level White House aide with an idiotic nickname.

And two years from now we still won’t know who leaked the story, or even whether or not the NSA operation itself is legal.

That’s because the one thing that’s always left out of the choreography is the one thing that would bring down the curtain and abort the whole miserable performance: common sense.

Common Sense Can Trump the Law

We pride ourselves on being a country of laws, and rightly so. But a country whose legal system leaves no room for common sense cannot survive. Let’s use a non-political anecdote to illustrate how common sense can sometimes trump the law:

Imagine that you’re standing at a busy intersection with a small crowd of people waiting for the DON’T WALK sign to stop flashing so you can cross to the other side of the street. Next to you is a child holding a rubber ball in one hand and his mother’s hand in the other. Suddenly the child’s ball goes bouncing into the road and the child breaks free from his mother and runs after it. You see a truck barreling down the street – so you push through the crowd, run into the road, grab that child and bring him back to safety.

While the grateful mother thanks you, and while people in the crowd pound you on the back and say things like “Way to go,” and “Boy, did you move fast,” – a police officer comes up and starts to write a ticket for jaywalking.

“Officer,” you say, “perhaps you didn’t see what happened. This kid suddenly…”

“Doesn’t matter,” the officer replies. “You crossed against the light, and that’s illegal. Keep arguing and I’ll put you under arrest.”

Of course, this wouldn’t really happen. Not even the most left-wing, lunatic city council in the country (that would be Berkeley, with San Francisco and Seattle tied for second place) ever intended a DON’T WALK sign to stop someone from saving a child’s life. And it’s impossible to imagine a police officer who, once he’d grasped what really had happened, wouldn’t tear up that citation and shake the hero’s hand.

Now, let’s take a look at what the President authorized the NSA to do that – so we’re told – breaks the law and threatens our civil liberties. He authorized the NSA to listen in on telephone calls between terrorists and American citizens that originate overseas. And while we haven’t yet learned precisely how the NSA has used this authorization, it isn’t hard to think back to what was happening in the weeks and months after 9-11 and to imagine a likely scenario:

Stopping a Second 9-11

We had learned that planning for the 9-11 attacks had been under way for years – and our greatest fear was that planning for a second attack on our country now was under way. We had to stop it. Meanwhile, our troops were rolling through Afghanistan, knocking over the Taliban and killing as many al Qaeda fighters as possible. Along the way they were picking up documents and computers left behind by fleeing terrorists that provided the telephone numbers of cell phones used by al Qaeda leaders. The NSA moved fast to lock onto those numbers in hopes of learning something – anything – that might prevent a second horrific attack.

Suddenly a call is placed on one of those phones, and as the numbers light up on the NSA officer’s computer screen he sees the call is being placed to someone in Hamburg, Germany.

Will you be ready by Thursday?

In the name of Allah, we will be ready. And this time we will teach the Americans a lesson they won’t forget.

While the NSA officer signals his team that he’s onto something, a second call is placed. As the numbers light up on his screen he sees that this call is going to someone in Pakistan.

Our next project is set. We need only your final approval and I will give a green light to the mission commander.

You have my approval. This will be our greatest victory of all.

The NSA officer and his team are at full alert now, and scrambling to be sure they don’t miss whatever comes next. Moments later a third call is dialed on that cell phone, and as the numbers on his screen light up the NSA officer sees that this call is being placed to someone in Chicago.

Now, what do you want that NSA officer to do – hang up?

Of course not. And neither would any of the elected officials who wrote the laws that govern what the President can, or cannot, order the NSA to do. In fact, all these laws were enacted before the Internet and cell phones came into general use – and before the existence of terrorist groups like al Qaeda with a global reach, with sleeper cells throughout the world including inside the US, and with a stated goal of killing as many Americans as possible. No one who wrote these laws – not even the most left-wing, lunatic member of Congress – ever intended them to stop a President from moving fast to save the lives of Americans.

Like the man on a street corner who ignores a DON’T WALK sign and uses common sense – and courage – to save a child’s life, President Bush did what was necessary after 9-11 to prevent a second attack on our country. If his political enemies insist on ignoring common sense and making this a legal issue, that is their privilege. And it is our privilege to use our common sense to draw the obvious conclusion—that so deep is their hatred for the President that a second attack is precisely what they want, so they can claim the President has failed and gain a political advantage in the next election cycle.

Herbert E. Meyer served during the Reagan Administration as Special Assistant to the Director of Central Intelligence and Vice Chairman of the CIA’s National Intelligence Council. His DVD on The Siege of Western Civilization has become an international best-seller.

Ellie

[thedrifter]

Laughable claims about the NSA “Scandal”
January 3rd, 2006
Clarice Feldman

It’s clear that the New York Times is in big trouble with the announcement that the Department of Justice has launched an investigation into the leaks behind its NASA surveillance story. The investigation is long overdue.

The paper had been warned by the President that national security would be seriously jeopardized if this program were made public, but it nevertheless chose to print it anyway. And it timed the disclosure just as Congress was debating the extension of the Patriot Act, a law which, along with the NSA program, undoubtedly is responsible for the remarkable absence of attacks on US soil since 2001. There has been much debate on the legality of the program. All significant legal opinions in areas of new technology and unprecedented situations are debated. But keep in mind that the President sought legal opinions through normal channels, subjected the program to internal reviews and appropriately advised the Senate and House Intelligence Committee Majority and Minority members of it. Although Senator Rockefeller may have written a private note to himself expressing concerns, none of the members of Congress raised any serious objection to it or took a single step to stop it.

They undoubtedly understood at the time that the President acted out of real concern for the national welfare and in an area not adequately covered by existing law or procedure. And the Rasmussen poll shows that almost two-thirds of Americans agree with both the President that the program was necessary, and the normal law enforcement model using warrants constitutes an archaic and impossible hurdle.

This is war, not law enforcement after all.

Professor Charles Fried clearly sets out why the technology being used makes the laws relating to traditional wiretapping and warrants obsolete.

I am convinced of the urgent necessity of such a surveillance program. I suppose but do not know—the revelations have been understandably and deliberately vague—that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G-Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved—only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

But if we had paid attention and didn’t share the media’s amnesia, we already knew that. In 2002 both the New York Times and Newsweek reported that cumbersome legalities related to the Foreign Intelligence Surveillance Act of 1978 prevented crucial dots from being connected, which could have stopped the 9/11 plot. Federal Judge Royce Lamberth’s criticisms and investigation of the FBI official charged under FISA with preparing FISA warrant requests had essentially shut down the process in the critical pre 9/11 period. This, in fact, was the reason why the agency had not sought a warrant to view the contents of Moussaoui’s computer, a search which as we now know might have prevented 9/11. Indeed, the Joint Senate and House Intelligence Committee report detailed just that.

The FBI’s failure to obtain a warrant to search Zacharias Moussaoui’s computer spawned its own whistleblower (and Time Magazine co-Person of the Year), Minneapolis FBI agent Coleen Rowley. Rowley became the darling of the media and the left for essentially accusing the President of failing to ignore the very legalities which are now trumpeted as being outrageously violated by him. Once again, the left and its media allies demonstrate their “damned if you do, damned if you don’t” stance toward George W. Bush. It is hypocrisy of a high order.

But the New York Times’ hypocritical arrogance in printing the NSA story was matched by its doomed effort in the Plame case to argue there was a First Amendment right to refuse to respond to the subpoena issued by the Special Prosecutor, whose appointment it had demanded to investigate the non-outing of a non-covert agent, a matter with absolutely no national security implications; a matter which was, in fact, not criminal at all.

They lost that case as we know. And they will lose on that very precedent any effort to refuse to reveal their sources in this matter of the NSA secrets. I expect their sources, who face criminal prosecution, will not waive any promise of confidentiality and the New York Times reporters will talk or go to jail. Because executive editor Bill Keller and publisher Arthur “Pinch” Sulzberger may well have been involved in the story and know the identity of the sources, and have refused to answer questions from their own ombudsmen, public editor Byron Calame, they too could be subpoenaed and compelled to testify or else endure jail time. Were the matter less serious, I’d be laughing at the sheer fecklessness of the paper. Nevetheless, the paper does have its defenders who are already in demand as talking heads. And I am laughing at their efforts. Their first line of defense is at least as absurd as the paper’s strategic missteps. As I understand their main contentions they are (a) these were not leakers, but “whistleblowers”, and (b) the case shows again the need for a federal law protecting journalists’ privilege. Both these argument are preposterous.

5 U.S.C. 1213 sets up the procedures by which federal whistleblowers are to proceed.

Complaints are to be filed with the Office of Special Counsel. If they are found to be of merit and they involve “foreign intelligence or counterintelligence information” and disclosure of information described in the complaint is “prohibited by law or by Executive order, the Special Counsel shall transmit such information to the National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.”

These are very people, as it happens, that the President did fully inform of the program. There is simply no provision in the Act for calling New York Times reporters in lieu of the Office of Special Counsel.

That doesn’t mean we will be spared this ridiculous claim. But it does mean that it is an idiotic argument. If it weren’t, every intelligence officer could by that means decide our national security policy and its legality. Better they should spend their time doing their actual jobs, at which they haven’t actually been meriting much praise of late. Only slightly more risible is the claim that this case establishes yet again the need for a federal law granting journalists testimonial privileges. And yet that argument is being forwarded with a straight face:

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, expressed outrage at the Justice Department investigation into who leaked classified information to The New York Times about the Bush administration’s controversial domestic spying program, saying it is even more serious than the Valerie Plame probe.

“This is much more of a classic whistleblower than the Plame case was and that is why the stakes are much higher,” Dalglish said. “The public needed to know about it and that is a classic reason why reporters need to protect their sources and it is even more reason why there is a need to have a federal shield law.”

Dalglish believes that the seriousness of this case could drive regular citizens to speak out against such investigations and push more for a federal source protection bill to be passed by Congress. “Hopefully the public will begin to understand,” she said.

I have no idea in what precinct of Planet Zongo the Reporters Committee for Freedom of the Press is located, but Ms. Dalglish, this is the worst possible case for protecting sources. Those sources, dear lady, just violated federal laws designed to protect national security in the middle of a war started on our own soil. And the reporters who abetted that disgusting act are not worthy of our sympathy.

I can think of no reason why they sat on the story for a year, except commercial and partisan considerations. The Left is claiming the Times should have published the story in time to sway the election against Bush. But public editor Calame notes conflicting statements from the Times about the story’s readiness for publication a year ago. No dount criminal legal counsel employed by the Times is already worrying about getting the story straight.

I seriously doubt the Reporters Committee or the Times will get much support – except from the very people who argued that no matter how well-known it was that Plame worked for the Central Intelligence Agency, anyone who repeated that fact violated the Agee Act; and that the matter was so important a Special Prosecutor had to be appointed and the matter fully and thoroughly investigated until the leakers were named. Clarice Feldman is an attorney in Washihngton, DC.

Ellie

[greensideout]

Orwell's 1984, get used to it.