Friday, December 16, 2005

Shocked, shocked

The Eagle's editors are wondering What if Bush knew all along?:
Just when you thought the Plamegate mystery couldn’t get any odder, along comes syndicated columnist Robert Novak’s assertion this week that President Bush knows which administration official or officials leaked the CIA agent’s name to the media. That’s hard to believe, because it means the president sat silently by as one reporter was jailed and others were forced to testify -- actions, by the way, that despots around the world have cited as justification for their suppression of media freedom.

Somehow, I find that much less surprising. This is an administration that sends people to torture chambers around the world. Why not let a few reporters hang out in prison if there's a chance of saving Cheney's someone's skin.

What I find vaguely shocking, but not as shocking as I should find it, is the revelation that the administration has been spying on citizens and circumventing existing laws to do it:
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."
Well, a mainstay since the end of programs codenamed Minaret and Shamrock. For more on the history of the NSA, refer to The Puzzle Palace by James Bamford and Body of Secrets also by Bamford. Beginning in the 1940s, the NSA would collect the stored telegraphs sent from New York across the Atlantic and sift through them based on watchlists, a program called Shamrock. No warrants were required, and the existence of the NSA, let alone this project, were deeply classified.

Later, under pressure from Nixon, the intelligence agencies were tasked "to program for coverage the communications of U.S. citizens using international facilities." Among the groups and people targetted in Minaret: Benjamin Spock, Joan Baez, Jane Fonda, Martin Luther King, Jr., and "all Quakers in the United States." The man in charge of this surveillance recalls of that last request "when Richard M. Nixon is a Quaker and he's the president of the United States, it gets pretty funny."

The Attorney General eventually spiked the program as blatantly unconstitutional, but the surveillance didn't stop. John Dean traded information on that plan in exchange for immunity in the Watergate affair, and the lid came off.

Senator Frank Church held hearings. At the hearings, the NSA head was prepared to concede that Shamrock was illegal, but was saved from testifying in open session at the last minute.

L. Britt Snider was a counsel for the Church Committee who eventually became Inspector General at the CIA. In an interview published in 2000, he recalled that "the investigation … had a beneficial effect on NSA. With no desire to undergo another such experience, NSA adopted very stringent rules in the wake of the Church Committee to ensure that its operations were carried out in accordance with applicable law. Where communications of U.S. citizens were concerned, I can attest from my personal experience that NSA has been especially scrupulous."

Bamford explains "Among the reforms to coome out of the Church Committee investigation was the creation of the Foreign Intelligence and Surveillance Act (FISA)…. The new statute outlawed wholesale, warrantless acquisition of raw telegrams such as had been provided under Shamrock. It also outlawed the arbitrary compilation of watch lists containing the names of Americans. … In order for NSA to target an American citizen or a permanent resident alien … within the United States, a secret warrant must be obtained from the court."

The law in question is Title 50, Chapter 36. It says:
1802 (a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
My emphasis. Section 1811 (which would only apply if war were declared, and it hasn't been):
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
Fifteen days is a lot different than 3 years. The act also establishes a secret court to issue secret warrants against people suspected of involvement in terrorism or of acting as agents of a foreign power (spies, saboteurs, etc.).

This warrantless espionage is clearly and inescapably illegal.

So, while we're on the topic, is the retention of information on peaceful protests in a Pentagon database. In the grand scheme of things, that seems relatively trivial, though.

The lesson? You can't trust George Bush. When you do, he'll abuse the trust.

The Vanishing Spies” by Frank Black from the album Teenager of the Year (1994, 3:37).
Sit And Listen To The Rain” by Whiskeytown from the album Pneumonia (2001, 4:05).