NSA and Judicial Surveillance.

After thinking about the NSA domestic intercepts program, I have decided that much of the discussion of this subject misses the point about what has changed in communications surveillance in this country.

Before 9/11 (with a few exceptions) domestic communications surveillance was a matter for the police (FBI et al) under the supervision of the courts.  The police were required to provide the appropriate judge evidence which supported the need to inspect someones communication in preparation for a possible court proceeding against that person.  The writs issued by such judges had expiration dates and the police were forced by the law to return to the courts periodically to obtain extensions.  The police did not particularly like that because it was inconvenient to them, and the police (like everyone else) want to have their lives made as simple and safe as possible.  A lot of them would also like to have the citizenry deprived of the right to own guns, a similar thing.  Nevertheless, this whole system was part of our JUDICIAL system.

The National Security Agency (NSA) is not part of the judicial system.  It grew out of World War 2 codebreaking activities on the part of the armed forces (Enigma, etc.) and continued to grow like the Hydra throughout the Cold War.  American government found large scale "exploitation" of Soviet electronic signals to be a comprehensible and worthwhile endeavor, something much more to American taste than the messy, more morally ambiguous business of espionage (HUMINT).

It seems to me that all the talk of warrants and the FISA law is irrelevant.  The decision to use NSA against US domestic communications had nothing to do with the courts or the FISA law.  It was simply a decision to tell NSA to turn its antennae inward rather than outward.  NSA is essentially a military organization although it employs many civilians.  It is part of the Department of Defense (DoD).  When given an order, it obeys with no quibbling about court orders, warrants, writs, expiration dates, justification. etc.

Having been told to perform such operations, NSA and other element of DoD will simply continue them indefinitely, receiving tasking from intelligence centers and consumers routinely and collecting information as they did for half a century against the Soviets.  "Consumers?"  Hmmm…

This leaked to the press because people at NSA decided that their professional habit of silence was trumped by the implications of this massive a change in the privacy rights of Americans.

Pat Lang


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13 Responses to NSA and Judicial Surveillance.

  1. Rider says:

    “It was simply a decision to tell NSA to turn its antennae inward rather than outward.”
    But as Rick Francona pointed out here, that violates USSID 18. Domestic surveillance of was supposedly anathema at NSA. I take it the reason court orders, FISA warrants, writs, etc. were irrelevant to NSA was that NSA was in the past very scrupulous about surveilling only foreign targets and so was not part of the judicial system. But they can’t continue to claim that exemption once they begin domestic surveillance, orders or not. Surely that was at the heart of the decision to leak. (What btw has happened to the leakers in the year that the NYT has sat on the story at WH request?)

  2. Michael Singer says:

    There was no practical reason for the President to ignore the warrant process except to send a political message that in this”war on terror” he can do whatever he wants. That’s not the way it is supposed to be done in America. We are a country of laws. This isn’t Italy or Syria. I don’t need to tell you of all people that many too many have died to uphold the rule of law. Bush acted illegally but Congress is controlled by Republicans so there will be not consequences. The sentence for breaking the FISA law is 5 years in prison. You are the one who is missing the point. And happy holidays.

  3. RJJ says:

    “(What btw has happened to the leakers in the year that the NYT has sat on the story at WH request?)”
    I like this question. But how do you confirm the truth of whatever answer you get?

  4. John Diaz says:

    The administration’s decision to ignore the warrant requirements of FISA goes to the very heart of how our government is supposed to work. Even if we accept, for argument’s sake, that the FISA requirements are no longer practical, the President is not empowered to break the law. The law was passed by Congress and he must go to Congress to change the law.
    To argue otherwise is to advocate monarchy or dictatorship.

  5. avedis says:

    alternate theory: Bush is responsible for the leak.
    He is seeking to test how readily his assertion – that a “war on terror” gives him absolute unmitigated authority to act in contrast with established laws and civil rights – is accapted by the American public.
    This would explain – at least in part – why he didn’t seek warrants even when doing so would have resulted in warrants being issued in an expedited fashion.
    Bush is testing the limits of presidential power.
    Disclaimer: I actually think that the best explanation is that the spying was casting a wider net than would have been approved by a court. However, one cannot disregard Bush’s arrogance and quest for greater power. Also, I just think it’s interesting to entertain alternative explanations.

  6. W. Patrick Lang says:

    What point did I miss? Would you like me to be more emotional about it? I explained to you what happened. Do I have to wave my arms and jump up and down? pl

  7. ikonoklast says:

    A look at the technological aspect of this issue and its implications:
    — The new technology at the root of the NSA wiretap scandal
    ‘When the truth comes out (if it ever does), this NSA wiretapping story will almost certainly be a story not just about the Constitutional concept of the separation of powers, but about high technology … “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” [Bob Graham D-FL] said, with new opportunities to intercept overseas calls that passed through U.S. switches.’
    — NSA wiretap followup: Why computer-automated mass surveillance is a bad idea
    ‘Government money invested in much less intrusive and much less defense contractor-friendly programs like training more Arabists and developing more “human assets” in the field will be orders of magnitude more effective than mass surveillance could ever be … any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time.’

  8. W. Patrick Lang says:

    The point of my piece was that the presdent has assumed the power to do anything he wants and to do it in the name of national security. “USSID 18?” A trifle. Piffle! “L’etat? c’est lui.” pl

  9. W. Patrick Lang says:

    “any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time.'” Thanks. I have been trying to make that argument for about 40 years with mixed results.
    Of course with SIGINT, maybe the machine does rule, but SIGINT is only one part of the story. PL

  10. Patrick Henry says:

    As`a Career law Enforcement Officer ..I would like to step into this debate..
    Referring to the first part of Pats article…As`a LEO..One of the Primary areas of My training was RIGHTS..as applied to CONSTITUTIONAL RIGHTS..
    We had to operate within the Strict Confines of Law.at all Times.as established by Our Founding Fathers..in the Constitution..
    Every thing we did was held up to the LIGHT of the law..
    We know all about Probable Cause..Warrants..Unreasonable ..Searchs and Siezures..
    We held to those Standards and so did the Courts..either in granting or Not granting Warrants and Holding Our Court Proceedings to the Strict Standaqrds of the Constitution .Due Process of the Law.. and Insuring that ALL Officers and Officals and Partys Hold to the Established Standards of the LAW..
    Now to the FISA issue..Yes these are Dangerous Times..
    Yes we weere attacked at a time when terrorism was Not Even a Apparent Priority to George Bush and His Administration..Probably because they had thier Eyes on other Things..
    Using the DIA and other Assets AND TOOLS we TAXPERS
    have provided the Employees and Politicians and Military of the Federal Government is Good and essential to our national Security if used Properly..
    They are subject to ABUSE without checks and Balances and Controls..
    We`all know that..All we ask is the INSURANCE and Assurance that they are used Properly and not Abused..Industry and Commerce have a Right to Protect too under the Law..They should be Concerned too..
    Being used as they are Now is the Greatest Intrusion into Domestic Privacy and Spying With great Potential for Abuses..on all Levels..
    We cannot Solely rely on TRUST ME..safeguards..`
    The LAW is Supreme..Nothing OVERIDES the Costitution without Admendments…There are Correct proceedures..
    THE RIGHTS OF CITIZENS..is also an Article of the Constitution..
    My Concern is that Bush Is Relying on Hand Picked and Appointed` Advisors for INTREPERTATIONS of HIS Percieved Authority and Powers in “WARTIME”..
    Those Self Appointing Powers have Potential for GREAT Abuses..
    are FAR to Great to be ASSUMED..without Proper Judicial Review and Examination..
    He should always Be held to the same standards all the rest of us are..especially officers of the Law..THAT
    applys to the President too..
    Like US..He Raised His Right Hand..in the Presence of a JUDGE..and took the OATH..
    With this administrations Attitude..toward the Law and an apparent disregard for the LIMITS` of thier Power ..and a Disregard for the Peoples Growing Fears and Concerns about those ASSUMED Powers..without Review..
    We MUST Hold them Accountable..and Challange them in the Same MANNER they are challenging us..
    It is His almost apparent FEAR of Checks and Balances over what he and His Adeministration are doing that bothers me the Most..
    He should be the FIRST..to want to Insure that the Constitution is PROTECTED..
    In the Mean while WE THE~PEOPLE~SHALL SPEAK..

  11. nanook says:

    I am in a bit of post-holiday funk. Maybe it was too much turkey and wine or just thinking about all those gifts and the consumerism it represented. But I think it was the thought of how we live in such oblivion.
    The stories of the past few months leave me at times despondent about our childrens future. The NY Times holding on to a critical story until the minute before the reporter publishes his book. The President directly influencing publishers and editors about what they should and not publish. Public service professionals careers being jeopardized for political purposes. Corruption and deceit in the allocation of taxpayer monies on a blatant scale. Torture, contravening international treaties like the Geneva conventions.
    But most troubling the utter disregard for our Constitution and the individual rights of citizens that our ancestors fought the Revolutionary war. No habeas corpus rights for those labeled by the executive as “enemy combatants”.
    And the tepid response by the populace in general.
    Are we inexorably marching to a new form of totalitarianism? We already have a one party state. How much further to just teeter of the edge?

  12. Rider says:

    “L’etat? c’est lui.”
    Yes, I was just trying to put myself inside the skin of someone at NSA, a leaker perhaps. If you eat, sleep, and breathe USSID 18, surely this must rankle something wicked.

  13. searp says:

    It seems to me that PL probably has the right characterization of the president’s action.
    The questions are whether (1) it is legal and (2) it is wise policy.
    To me, the answers seem to be (1) probably not and (2) definitely not.
    I’d argue, as others have, that this president has used a traumatic event, 9/11, to justify a historically bad presidency.
    He now seems to have the public just where he wants it – scared and bitterly divided. We will look back on this time with deep shame, and we should.
    I just hope we can recover our collective wits.

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