Good talk, bad questions

IN THE NEWS
Mandatory reading for anyone interested in the FISA wiretaps controversy is the transcript of a talk given by General Michael Hayden, a former NSA director who now works for John Negroponte, the new Director of National Intelligence. Hayden gives a creditable summary of the reasons why the Bush Administration decided to bypass the FISA courts after 9/11. In fact, someone in the Administration should have put Hayden in front of the press right away.

However, Hayden is not 100% convincing about either the necessity or the legality of the warrantless wiretaps. On the question of whether the wiretaps were legal or constitutional, I don't expect him to play the role of a Department of Justice attorney. However, Hayden can talk more than he did about the effectiveness of the wiretaps in catching terrorist or stopping attacks. For all the words spoken in his speech and the Q&A session afterwards, Hayden did not really provide an answer to that question. Hayden does acknowledge the practical problems this new geyser of data created:

Now, as another part of our adjustment, we also turned on the spigot  of NSA reporting to FBI in, frankly, an unprecedented way. We found that we were giving them too much data in too raw form. We recognized it almost immediately, a question of weeks, and we made all of the  appropriate adjustments. Now, this flow of data to the FBI has also become part of the current background noise, and despite reports in the press of thousands of tips a month, our reporting has not even approached that kind of pace. You know, I actually find this a little odd. After all the findings of the 9/11 commission and other bodies about the failure to share intelligence, I'm up here feeling like I have to explain pushing data to those who might be able to use it. And of course, it's the nature of intelligence that many tips lead nowhere, but you have to go down some blind alleys to find the tips that pay off.

If you follow his carefully-phrased sentences carefully, however, he doesn't say much more than, The flow of information got more focused and more useful. Of course, that assertion begs the question, As measured by what results?

Whatever you think of General Hayden, the journalists in the room deserve to be dope-slapped for the godawful questions they asked. Both the press and the US Congress have lost the ability to ask simple, pointed questions, the kind that elicit reluctant but necessary answers. Instead, Hayden suffered through overlong, unfocused questions that didn't really compel him to do anything but repeat his earlier assertions. Yes, thank God, the NSA is not listening to random telephone calls. But did the warrantless wiretaps actually accomplish anything?

[Incidentally, I'm by no means trying to deflect the discussion away from the serious legal and constitutional issues. I do believe strongly that the effectiveness question needs to be handled at the same time.]

Comments

[J.]

I'm wondering if you saw the daily Kos post on Hayden's confusion on the definition of the 4th amendment...
http://www.dailykos.com/storyonly/2006/1/23/18342/1340

[David Weber]

Also astray, but have you seen Drum's post (http://www.washingtonmonthly.com/archives/individual/2006_01/008070.php) with links to the Pentagon's Quadrennial Defense Review and early commentary? It's, like, totally your game.

[J Thomas]

First question is: Do you believe that Hayden was telling the truth as he knew it? If you believe he's lying, then it doesn't matter what he said except to look at his tactics.

If he isn't directly lying, then the next question is what loopholes are present.

Here are some I see:

1. He said that they do international communications, and the only time they monitor domestic communications is when they have a FISA warrant to do so. When they make a mistake and monitor a communication they shouldn't have, they destroy the record but log the event. So who is it that monitors domestic communications apart from them? Is it still the FBI? Have they gotten a whole lot of new capability at that? Is it some new agency we haven't heard the name of yet?

2. He quit NSA close to a year ago. If it comes to a crisis, could he later claim he didn't know about the things happening in this last year?

3. He says it's only suspected al qaeda affiliates being monitored, and that it's reasonable. But he can't give details. If al qaeda currently has 10,000 members, and each of them knows 5,000 people, that's 50,000,000 suspects. But is it really so limited? He doesn't say, he just says they're being reasonable, trust them.

4. When asked whether NSA is monitoring anti-war activists and political activists against Bush, he said that it isn't a "drift net" and they aren't monitoring random conversations for keywords. This was not responsive and when the question was repeated he ignored it.

5. He specifically said that the "Echelon" etc ideas are wrong, that NSA doesn't have those capabilities. I had had some doubts that they did on technical grounds. But it should be possible to monitor everything from a subset of users. And it should be possible to trim the tree reasonably. If you brush against a suspect they could monitor just enough of your stuff to make sure it doesn't lead anywhere useful. But then, how could they log all that? If they track 200 billion minutes of phone time a year that's fewer than 200 billion items to log. But if they have to log every false lead on a branching internet search that would be a lot more, surely they'd run out of storage just logging the mmisses ... but he didn't say how long they keep the logs. Maybe there's room after all....

All in all, I'd have a lot more confidence in him if he was under oath, and his testimony was compared to that of the top 50 NSA operations guys, who were each testifying independently under oath without access to each other's transcripts.

[J Thomas]

It isn't that I'm a conspiracy theorist. It's that this is a bona fide conspiracy, and officially it's a conspiracy designed to protect the USA -- they can't tell us what they're doing for fear it will make them less effective, it's all for our own good. But still it's a known conspiracy....

[Brian Williams]

@J Thomas

The problem as I see it, is this: If you allow a conspiracy, even for the ostensible purpose of protecting us, what controls are there against abuse of that conspiracy? Are we just supposed to trust what they say simply because they know better than us?

Spying is one problem. To my mind doing so with no oversight is yet another, bigger one.

"Trust me because I tell you I'm trustworthy."
Quid quaesit quaesitores?

[J Thomas]

Brian, yes, that's what General Hayden says. He says they're doing everything right and we should trust them. We have nothing but his word about any of it.

If you trust him, then there's no particular problem. If you don't trust him, then there's the question how far you distrust him. Would he shade the truth or would he outright lie?

[Mojo]

Sorry I'm late to this thread.
J - The question on the 4th amendment has always been whether or not a warrant is required for every search or are those two clauses distinct so that all searches must be reasonable but only those which require a warrant require probable cause to issue the warrant. The Supreme Court has come down on the side that some searches do not require a warrant (searching parolees' homes, searches incident to traffic stops or arrests, etc.) In those cases, the standard has been "reasonable" vice "probable cause".
I don't happen to agree with that interpretation (I think that if the founders had intended that warrants were only required in some cases they would have given some sort of clue as to when), but it is what the courts have consistently said.

[Kingdaddy]

Quis custodiet ipsos custodes? (Translation: "Who shall guard the guardians?")

I'm no lawyer, but it seems like the Administration's arguments about how the Fourth Amendment does not apply seem a bit specious. You can't argue exigent circumstances, because the Administration has not, to date, demonstrated anything like a ticking bomb scenario that was detected through signal intercepts. Instead, it is narrowing the field to a list of suspects who may be involved in terrorist operations--which is a lot like the way in which the FBI and other law enforcement agencies eavesdrop on members of the Mafia or other organized crime groups.

Nor can the Administration argue that the capacity to eavesdrop is sufficient license to eavesdrop. Anyone can buy for a couple of hundred dollars a parabolic microphone or other remote listening device. Is it OK for private citizens, the police, the NSA, or the military to turn this kind of equipment on anyone they feel like? It all depends on who they are, what reasons they have to eavesdrop, and what explicit license they receive from a judge or other granting authority. The President of the United States has no independent granting authority for domestic surveillance--hence the FISA courts.