Eavesdropping: High Tech, Low Legality
    By Ray McGovern
    t r u t h o u t | Perspective

    Saturday 07 January

    On December 19, while many of us were Christmas shopping, Attorney General Alberto Gonzales and Deputy Director of National Intelligence Gen. Mike Hayden held a press conference prompted by recent revelations about warrantless eavesdropping on US citizens. It was serendipitous that they picked one of the darkest days of the year, for their assertions and their spin cannot withstand the light of day.

    This latest White House-orchestrated performance shows that, with the help of highly questionable legal advice and the suborning of senior generals to disregard their solemn oath to defend the Constitution, the administration is edging this country ever closer to being a police state. A report released yesterday by the nonpartisan Congressional Research Service states that the decision to eavesdrop on US citizens was based on weak legal arguments, and conflicts with existing law.

    Gonzales and Hayden answered questions about reports that the National Security Agency, which Hayden directed from 1999 to 2005, was eavesdropping on Americans via a special program approved by the president in violation of the Foreign Intelligence Surveillance Act (FISA). The implications for privacy - and our system of checks and balances - are immense.

    As long as he read from his prepared statement, Attorney General Gonzales did just fine with the press. He conceded that FISA requires a court order to authorize the surveillance the president ordered NSA to undertake, and then hammered home the administration's "legal analysis:" the twin argument that Congress' post-9/11 authorization of force and the president's power as commander in chief trump the legal constraints of FISA.

    Spilling the Beans

    When the reporters' questions began, though, Gonzales faltered and unwittingly got down to the crux of the matter. Asked why the administration decided to flout rather than amend FISA, Gonzales said:

    "We have had discussions with Congress...as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

    So they went ahead anyway.

    Gen. Hayden's remarks were equally intriguing: He conceded that the special program authorized by the president was "more aggressive than would be traditionally available under FISA," but stressed repeatedly that the new program deals only with international calls for short periods of time. In other words, Hayden seemed to be saying, US citizens are monitored only sometimes, and just a little bit; hence we are dealing with tiny incompatibilities with the FISA law; and, besides, the president has said he has the authority anyway.

    FISA Flexible

    Hayden and Gonzales both stressed the need for "speed and agility." But this cannot be the rationale for breaking FISA. The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret "emergency" electronic surveillance and searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. So why did the Bush administration order NSA to skirt the FISA law protecting Americans from eavesdropping? This remains the most puzzling question.

    Is It Simply Power-Grab and Chutzpah?...

    The most cynical and, I fear, the most persuasive answer can be gleaned from Vice President Cheney's bizarre assertion - supported, no doubt, by a stack of in-house legal opinion, that in war time the president "needs to have his powers unimpaired." As noted above, on Dec. 19 Gonzalez invoked the "inherent authority under the Constitution" of the commander in chief, as well as the equally ludicrous claim that Congress' authorization of war after 9/11 trumps FISA - a claim that even The Washington Post has termed "impossible to believe."

    These extreme views are the same ones that underpin the president's decision to flout international and US criminal law by approving practices like torture, until now almost universally rejected by civilized societies. The answer may be simple - "imperial hubris," one might call it. And if - as seems to be the case - senior leaders like Colin Powell acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely - indeed, that even closeness to absolute power can.

    ...Or Is It Physics and Volume?...

    Part of the problem may lie in the physics of the challenges faced by NSA and the availability of sophisticated technologies not foreseen when the FISA law was passed in 1978. At the press conference, the attorney general issued a pointed reminder that there have been "tremendous advances in technology" since 1978. Recent press reports on the volume of communications being monitored by NSA suggest that the number may be so large as to be technically or practically impossible to take to the attorney general for approval as individual FISA "emergencies." Consistently high numbers of monitored communications could have trouble passing muster at the FISA court as "emergencies," for the exceptions would quickly swallow the rule.

    A recent article by Charles Freid in the Boston Globe suggests that communications are now selected for monitoring based on highly sophisticated algorithm programs and that "at the first, broadest stages of the scan, no human being is involved - only computers." This, and the high numbers involved, would make it impossible to obtain "emergency" AG approval on an individual basis, as required by FISA.

    As Gonzales has indicated, initial soundings were taken with Congress and the prognosis was deemed poor for obtaining NSA vacuum-cleaner-type authority to suck up communications - including those to or from Americans - from wires and the ether. But is that not what government lawyers are for; i.e., to devise ways to make such things legal by amending laws or introducing new ones? There is no sign of any serious effort on the administration's part toward that end. Rather, administration officials apparently preferred to fall back on the "anyway" rationalization; i.e., the notion pushed by the vice president and top administration lawyers that the president has the power to authorize eavesdropping anyway.

    ...Or Is It Perhaps All of the Above?

    But didn't Bush say?... The vast quantity of communications reportedly intercepted by NSA under this special program (New York Times reporter James Risen says "roughly 500 people in the US every day over the past three or four years") renders suspect the president's claim that all of the monitored communications have some link to Al Qaeda and other terrorists. If he is telling the truth, we are indeed in serious trouble.

    Another concern is that, among the groups of American citizens most likely to be sucked up by the NSA vacuum cleaner - because of the nature of their work and their international calls/contacts - are members of Congress and journalists. A key question that raises its ugly head is this: If hundreds of calls and e-mails involving Americans are being intercepted each and every day, and juicy tidbits are learned about, say, prominent officials or other persons, there will be an almost irresistible temptation to make use of this information. Former FBI special agent Coleen Rowley, who for many years monitored court-authorized electronic surveillances and wiretaps relating to organized criminal and drug conspiracy groups, recently underscored how much one can learn about someone by listening in on his/her private communications. She reminds us that the blackmail potential is clear.

    Ample Precedent for Blackmail

    And the federal government has a long history of using domestic intelligence for just such purposes. J. Edgar Hoover, the first director of the FBI, was adept at using information so acquired not only to pursue those he suspected of Communist or "un-American" activities, but also to maintain his power and influence for 47 years over presidents, members of Congress and other power brokers. The FBI's COINTELPRO activity's use of such information to harass and discredit Dr. Martin Luther King, Jr. is a particularly glaring example of such abuse. And Nixon's access to such information gave him the inside track on how to neutralize those on his long "enemies list."

    Would you trust a Karl Rove, a Dick Cheney, an Elliot Abrams, a Roberto Gonzales, an I. Lewis Libby, a David Addington or a John Bolton with such information? With the obsequious example set by Gen. Hayden, no director of NSA is likely to keep it from them. What might they be likely to do with it?

    Abuse of private information can be even more dangerous than the loss of the personal privacy that so many say they are willing to trade for a bit more security. Rather, such abuse constitutes serious trammeling of civil liberties and - still worse - can tip the precarious balance of constitutional checks and balances. It was, after all, precisely because of such abuses that the FISA law was passed in the first place.