Monday, December 19, 2005

I'm Shocked; I'm Shocked

By Melissa Boyle Mahle

I must admit that I find myself shocked at the recent disclosures on the NSA eavesdropping activities in the US, but not for the same reasons that are getting play in the press. First of all, was anybody listening to the recommendations of the 9/11 Commission Report and the Joint Congressional Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001? Both of these investigations cited the gap between foreign and domestic intelligence collection as a major weakness in the intelligence community and one of the reasons why 9/11 was not stopped.

The Joint Congressional Inquiry in particular looked at the NSA and the difficulties this eavesdropping organization had in countering emerging terrorism threats. Although most of the sections dealing with the NSA were not declassified, the Joint Congressional Inquiry report clearly said that even though it has the mission and authority to seek FISA court approvals, NSA was not collecting in the US because of fears of being accused of targeting US citizens. The NSA and FBI were not working together to insure NSA leads were followed up by the FBI. Congress and the American people asked President Bush to fix the intelligence problem.

Bush did. So what is the stink really about?

Bush authorized the NSA to collect in the US against US persons without going through the established procedure that provides judicial review. This has people who are concerned about civil liberties going nuts. What shocks me is that individuals in Congress, members who sit on the intelligence oversight committees apparently agreed to NSA’s expanded activities without the protection of judicial review, which is against US law. Congress gave the green light to cede the review responsibilities back to the intelligence community, allowing the proverbial fox to watch the hen house.

I do not doubt Administration statements that NSA has established a strict review process to ensure there is no undue infringement on US civil liberties. As the action organization, however, the NSA scale will have a tendency to tip towards national security interests, not civil protection interests, because of built in biases. It was for these very same reasons that when the FISA courts were established, they were not established as review boards within the FBI. But even this is not the point; the Executive Order is counter to the 1978 Foreign Intelligence Surveillance Act (FISA), which provides for domestic surveillance under extreme situations, but only with court approval.

Why did the Bush Administration decide against the FISA path? I don’t have any inside knowledge on this but I suspect the answer would have to do with cutting through red tape and giving NSA the agility to respond quickly to emerging threats. Think about it. If NSA is monitoring email correspondence of a terrorist operational planner overseas and suddenly this suspect starts sending messages back and forth with someone in the US. The emails move through a US-hosted ICP and are read by the intended recipient--a US person. This recipient then contacts several different people, all in the US, but in different areas, forwarding on parts of the messages. This would be considered significant intelligence activity that would require immediate follow up. But what if NSA had to turn off the system the minute the email started moving through US companies to US persons? If it took days or weeks to pass the intelligence to the FBI or to get FISA approvals, leads could be lost or things could go boom in the night.

Is this a sound argument? Perhaps, if it really does take days or weeks to put together a FISA request. But it doesn't. It can be done in one day. The FBI had a similar problem when monitoring the telephones of criminals. Smart criminals would use good telephone security by not using the same phone all the time, mixing it up with pay phones, newly acquired cell phones, or the phone of the neighborhood bar. The FBI succeeded in getting roving wiretap approvals so that the wire tap approval was on the individual, not the phone. Each time the criminal would use a different phone, that call could be monitored because of its connection to the criminal suspect. The FBI also has relatively new authority to initiate a wiretap in an emergency and then to seek FISA approval immediately afterwards. The FBI fixed the problem by refining the targeting method, not by cutting the FISA court out of the process. NSA should be able to use a similar approach for monitoring suspects. Plus, NSA should be working with the FBI on these operations in this new post 9/11 world of integration.

This case reveals once again the preference of the Bush Administration to establish secret policies under the guise of national security. This is very dangerous in a democracy. As I have argued before, it is defensible to have secret intelligence methods and operations, but intelligence policy must be transparent and subject to public debate, congressional oversight and judicial review. If the Bush Administration believes the FISA law is too restrictive, it should make its case in public to modify the law, and not break it under the cloak of secrecy and through Executive Order authorities.

Congress should take a second look at the expanded authorities of NSA for working inside the US and against US persons and determine if additional legislation is required and if there are sufficient safeguards built into the process so that protecting civil liberties does not become a discretionary practice or bureaucratic box checking exercise. There is a legitimate national security need here; let’s just deal with it in a democratic and legal way. Bush is simply wrong when he said, "An open debate would say to the enemy, 'Here is what we're doing to do.'" We are not talking about debating specific practices, but the policy. Bush's statement is akin to saying the National Security Act of 1947 should be classified.

One footnote on the FISA courts. I would not give them too much credit on the side of protecting civil liberties. Pre-9/11, these secret courts approved every FISA requested submitted to them by the FBI. It would be interesting to know if this batting average has continued post-9/11 as the numbers of FISA requests have dramatically increased.

For those interested, below are the relevent parts on the NSA from the “Joint Congressional Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001”.

Page xvi:

Finding 7: [Prior to September 11, the Intelligence Community’s ability to produce significant and timely signals intelligence on counterterrorism was limited by NSA’s failure to address modern communications technology aggressively, continuing conflict between Intelligence Community agencies, NSA’s cautious approach to any collection of intelligence relating to activities in the United States, and insufficient collaboration between NSA and the FBI regarding the potential for terrorist attacks within the United States].

Page 36:

[There were also gaps between NSA’s coverage of foreign communications and the FBI’s coverage of domestic communications that suggest a lack of sufficient attention to the domestic threat. Prior to September 11, neither agency focused on the importance of identifying and then ensuring coverage of communications between the United States and suspected terrorist-associated facilities abroad []. Consistent with its focus on communications abroad, NSA adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries].

NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection. NSA Director Hayden testified to the Joint Inquiry that NSA did not want to be perceived as targeting individuals in the United States and believed that the FBI was instead responsible for conducting such surveillance. NSA did not, however, develop a plan with the FBI to collect and to ensure the dissemination of any relevant foreign intelligence to appropriate domestic agencies. This further evidences the slow response of the Intelligence Community to the developing transnational threat.


Page 73-75:

The inability to bring technical collection capabilities to bear in the counterterrorism area was particularly apparent in regard to signals intelligence that could have shed greater light on the potential for terrorist activity within the domestic United States. Both the NSA and the FBI have the authority, in certain circumstances, to intercept international communications, to include communications that have one communicant in the United States and one in a foreign country, for foreign intelligence purposes. While those authorities were intended to insure a seamless transition between U.S. foreign and domestic intelligence capabilities, significant gaps between those two spheres of intelligence coverage persisted and impeded domestic counterterrorist efforts.

Before September 11, it was NSA policy not to target terrorists in the United States, even though it could have obtained a Foreign Intelligence Surveillance Court order authorizing such collection. NSA Director Hayden testified that it was more appropriate for the FBI to conduct such surveillance because NSA does not want to be perceived as targeting individuals in this country and because the intelligence produced about communicants in the United States is likely to be about their domestic activities.

[As a result, NSA regularly provided information about these targets to the FBI – both in its regular reporting and in response to specific requests from the FBI – [ ] that NSA acquired in the course of its collection operations. The FBI used this information in its investigations and obtained FISA Court authorization for electronic surveillance [ ] when FBI officials determined that such surveillance was necessary to assist one of its intelligence or law enforcement investigations].

[One collection capability that was used by both NSA and FBI under approval of the FISA Court (the “FISA Court technique”) had a [ ] probability of collecting [ ] communications between individuals in the United States and foreign countries. NSA did not use the FISA Court technique against [ ], however, precisely because of this [ ] probability].

As NSA Director Hayden has testified to the Joint Inquiry, NSA believed it was the FBI’s responsibility to collect communications of individuals in the United States. General Hayden stated two reasons for this position. One is that, since the individual is in the United States, the information obtained is most likely to relate to domestic activity that is of primary interest to the FBI. The second reason is that NSA does not want to be viewed as targeting persons in the United States. Joint Inquiry interviews of a wide range of NSA personnel, from the Director down to analysts, revealed the consistent theme that NSA did not target individuals in the United States. This is so ingrained at NSA that one counterterrorism supervisor at NSA admitted that she had never even thought about using this technique against [ ].

Despite the NSA view that this category of intelligence collection was the FBI’s responsibility, NSA and the FBI did not develop any plan to ensure that the Bureau made an informed decision about whether to use the FISA Court technique to collect communications between the United States and foreign countries that NSA was not covering. Thus, a gap developed between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability].

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