Project Shamrock

Decades before 9/11, and the subsequent Bush order that directed the NSA to eavesdrop on every phone call, e-mail message, and who-knows-what-else going into or out of the United States, U.S. citizens included, they did the same thing with telegrams. It was called Project Shamrock, and anyone who thinks this is new legal and technological terrain should read up on that program.

Project SHAMROCK...was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States. The Armed Forces Security Agency (AFSA) and its successor NSA were given direct access to daily microfilm copies of all incoming, outgoing, and transiting telegraphs via the Western Union and its associates RCA and ITT. Operation Shamrock lasted well into the 1960s when computerized operations (HARVEST) made it possible to search for keywords rather than read through all communications.

Project SHAMROCK became so successful that in 1966 the NSA and CIA set up a front company in lower Manhattan (where the offices of the telegraph companies were located) under the codename LPMEDLEY. At the height of Project SHAMROCK, 150,000 messages a month were printed and analyzed by NSA agents. In May 1975 however, congressional critics began to investigate and expose the program. As a result, NSA director Lew Allen terminated it. The testimony of both the representatives from the cable companies and of director Allen at the hearings prompted Senate Intelligence Committee chairman Sen. Frank Church to conclude that Project SHAMROCK was "probably the largest government interception program affecting Americans ever undertaken."

If you want details, the best place is James Banford's books about the NSA: his 1982 book, The Puzzle Palace, and his 2001 book, Body of Secrets. This quote is from the latter book, page 440:

Among the reforms to come out of the Church Committee investigation was the creation of the Foreign Intelligence Surveillance Act (FISA), which for the first time outlined what NSA was and was not permitted to do. 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 list containing the names of Americans. Under FISA, a secret federal court was set up, the Foreign Intelligence Surveillance Court. In order for NSA to target an American citizen or a permanent resident alien--a "green card" holder--within the United States, a secret warrant must be obtained from the court. To get the warrant, NSA officials must show that the person they wish to target is either an agent of a foreign power or involved in espionage or terrorism.

A lot of people are trying to say that it's a different world today, and that eavesdropping on a massive scale is not covered under the FISA statute, because it just wasn't possible or anticipated back then. That's a lie. Project Shamrock began in the 1950s, and ran for about twenty years. It too had a massive program to eavesdrop on all international telegram communications, including communications to and from American citizens. It too was to counter a terrorist threat inside the United States. It too was secret, and illegal. It is exactly, by name, the sort of program that the FISA process was supposed to get under control.

Twenty years ago, Senator Frank Church warned of the dangers of letting the NSA get involved in domestic intelligence gathering. He said that the "potential to violate the privacy of Americans is unmatched by any other intelligence agency." If the resources of the NSA were ever used domestically, "no American would have any privacy left.... There would be no place to hide.... We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return."

Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.

We can decide as a society that we need to revisit FISA. We can debate the relative merits of police-state surveillance tactics and counterterrorism. We can discuss the prohibitions against spying on American citizens without a warrant, crossing over that abyss that Church warned us about twenty years ago. But the president can't simply decide that the law doesn't apply to him.

This issue is not about terrorism. It's not about intelligence gathering. It's about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.

It's not the spying, it's the illegality.

Posted on December 29, 2005 at 8:40 AM • 97 Comments

Comments

Michael AshDecember 29, 2005 9:23 AM

"But the president can't simply decide that the law doesn't apply to him."

Unfortunately, it looks like he can. And worse, it looks like he'll get away with it.

ZwackDecember 29, 2005 9:53 AM

In that case Michael, the law doesn't apply to me either. Now please let me know where I can find you so I can go and snoop through your belongings.

Constitutionally the President CAN NOT just decide not to follow the law. Where there is no law he can decide he has the right to do things, but he cannot explicitly break the law. He has, and he may get away with it (I hope that he doesn't). The President has sworn to uphold the constitution. Apparently he thinks that means ignore it.

Z.

Scott From AustinDecember 29, 2005 10:03 AM

If this issue is "about the executive branch ignoring the law", then consider this. The Bush administration has briefed Congress (including Democrats) numerous times on the program. This is not the action of an administration trying to break the law.

ShuraDecember 29, 2005 10:05 AM

As much as I agree with Bruce's assessment, it always pains me that pretty much everyone who talks about these things only ever gets upset when they affect US-Americans - the same kind of spying is tolerated, or often even defended, when it applies to foreigners. After all... they're just foreigners, right?

I think there's a big ethical pitfall there, and many people don't even seem to realise it exists. Shouldn't the same ethical principles apply to everyone, no matter where they're from?

And yes, I know this is more about politics than security, so I didn't expect Bruce to comment on these things, but I do believe it's necessary to point out these things, because this, too, is an abyss that we don't want to get into, one that ultimately leads (and already has led!) to a Kafkaesque world of secret prisons, torture, and utter disregard for human rights and dignity.

Henry from MadisonDecember 29, 2005 10:16 AM

Actuall, I'd say it was just that...

From an article on MSNBC (http://msnbc.msn.com/id/10544654/):

As a member of the so-called “gang of four��? which includes the top Republican and Democrat of the Senate and House intelligence committees, Rockefeller was one of four members of Congress who received those briefings. The group can be summoned to the White House on short notice to be advised on the most sensitive intelligence information or plans for covert operations. It is safe to assume that if the United States is, in fact, operating secret prisons overseas, these four know plenty about them.

But membership also has its burdens. The "gang" — Republican Sen. Pat Roberts of Kansas and Rep. Peter Hoekstra of Michigan and Democrats Rockefeller and Rep. Jane Harman of California — is virtually gagged from discussing anything from meetings with anyone outside the group — not even other senators, staffers or lawyers with security clearance on the intelligence committees. “You can't discuss it with anybody as long as you live,��? Rockefeller said Monday.

[And a little further down,]

Rockefeller was annoyed. "They're just saying we're all briefed and informed and they implied implicit consent and all the rest of that and it's totally untrue," he recounted outside the Senate chamber after Bush's news conference. He said the impression the administration was leaving was "totally phony."

Tom GrantDecember 29, 2005 10:18 AM

@ Bruce:

"It's not the spying, it's the illegality."

Well spoken.

@ Lou

"This is not the action of an administration trying to break the law."

No, it is the action of an administration who has undertaken the task of systematically gutting constitutional protections to the citizenry of the USA using 'fear based' justifications rather than following legal precedent by obtaining warrants and maintaining the legal status quo.

Yes, we live in dangerous times. Acts of terrorism are heinous and an outrage to every citizen of the world. But America is a beacon of hope to that world, and we MUST NOT lower our standard of freedom in fear. And our President, and his administration, should be making that point clear. They definitely are not, and they have jeopardized the legal investigation of many terrorist detainees in doing so (not to mention trampled on the constutional rights of countless Americans).

Also, can we all be certain that the current administration uses wiretap and electronic surveillence only for tracking terrorist information? Does anyone remember Watergate? What are the odds that the communications going in and out of the DNC HQ during the '04 elections were not monitored "extra" closely?

Every single American who holds dear the concept of Freedom that this Nation was founded upon should be absolutely livid with this administrations abuse(s) of power.


DevanDecember 29, 2005 10:19 AM

@Scott- the fact that the president briefed members of both parties does not make the act legal.

"This is not the action of an administration trying to break the law."

So you're saying that if a criminal briefs Republicans and Democrats about his/her actions, he/she is no longer trying to break the law? Nifty loophole!

Davi OttenheimerDecember 29, 2005 10:24 AM

"The Bush administration has briefed Congress (including Democrats) numerous times"

Good one. Well that's debatable, especially in the context of an Executive power-grab.

First of all, just saying he "has briefed" someone doesn't really demonstrate anything other than the Executive might try and pass the buck for responsibility instead of just defending his actions as warranted and necessary.

But aside from that glaring problem the facts themselves give a different picture than what you are implying:

http://jurist.law.pitt.edu/paperchase/2005/12/...

"In a handwritten letter [http://wid.ap.org/documents/051219rockefeller.pdf] to Vice President Cheney following a Senate Intelligence Committee briefing in July 2003, vice chairman Jay Rockefeller (D-WV) wrote that he felt 'unable to fully evaluate, much less endorse, these activities.' Rockefeller wrote that the briefing "exacerbat[ed] my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.' Former Sen. Bob Graham (D-FL), who also sat on the Intelligence Committee, has said he didn't recall briefings on program spying on US residents. Both former Senate Democratic leader Tom Daschle and his successor, Sen. Harry Reid (D-NV), have both said they had been briefed on the NSA program, but that key details about the program's scope were not shared."

So even if we try and look to Congress for blame we find that they were clearly either not given enough information and they said "I disagree", or they said "we need more info" and were brushed aside -- again, this is the very definition of an Executive branch power-grab.

TBoneDecember 29, 2005 10:28 AM

It's not the illegality, it's the Left's suggestion that it's illegal without the substantive proof to back the allegation up. If it's illegal, show me paragraph and verse where it's illegal; otherwise stop blowing hot air. Of course it's about terrorism you knucklehead. If you're not contacting known terrorists, your number won't even come up. Do you think NSA has enough analysts to listen to everyone's conversations? Stop the madness.

AnonymousDecember 29, 2005 10:45 AM

TBone-

"It's not the illegality, it's the Left's suggestion that it's illegal without the substantive proof to back the allegation up. "

This is not a partisan issue. Numerous conservatives have made this suggestion as well, for example former Georgia congressman Bob Barr.

"If it's illegal, show me paragraph and verse where it's illegal; otherwise stop blowing hot air. "

There is plenty of analysis about FISA available elsewhere in the press and on the Internet, including links to the statutes themselves. If you don't see it, you're not looking.

"Of course it's about terrorism you knucklehead. "

It's also about liberty. It may surprise you to learn that there is no consensus on the degree to which liberties should be sacrificed to defend society against terrorism. Bruce has written an entire book on the subject of security tradeoffs in this and related contexts, 'Beyond Fear', which you might benefit from reading. It may also surprise you to learn that governments can also engage in terrorism.

"If you're not contacting known terrorists, your number won't even come up. "

Says you.

"Do you think NSA has enough analysts to listen to everyone's conversations?"

Not the real issue. The data, having been aggregated, can be misused selectively later.

"Stop the madness."

Agreed.

Clive RobinsonDecember 29, 2005 10:48 AM

@Bruce,

Ever hear of the BRUSA agreament, wher the UK spies on US citizens (for the US) and the US spies on UK citizens supposadly for the UK.

Well it's been in place for a very long time now (so long you can find references to it on the Internet).

Basically the NSA supply a number of "other governments" with the listening equipment and specialist support. The governments supply the personell and hand over the tapes without access. The NSA analyses the data and occasionaly hands back some small scraps of information...

Unfortunatly the NSA also often forgets to hand over the intel it has gained on "other" Government citizens, so much so that some governments have considered terminating the relationship.

ARLDecember 29, 2005 10:48 AM

Actualy there is a lot of issues with congress being able to pass laws that deal with the two other branches of government. Seperation of powers also works to prevent congress from gaining too much authority.

One of my biggest issues with this is congress passing a law that gives the president the powers enumerated in the "war powers act". Such power was intended to rest in the hands of congress, not the president.

So is a law that limits what the executive branch can do in this case constitutional? As Dr. Pournelle often points out: Bad laws result in bad judgements.

Bruce SchneierDecember 29, 2005 10:59 AM

"If this issue is 'about the executive branch ignoring the law', then consider this. The Bush administration has briefed Congress (including Democrats) numerous times on the program."

The Administration didn't brief Congress. They briefed two Senators and two Congressmen. And didn't allow them to consult with their staffs.

"This is not the action of an administration trying to break the law."

I don't think they are trying to break the law; I think they don't think the law applies to them.

I have long said that the currect power grab by the Executive is being accomplished with complacency from Congress. That doesn't make it right.

AndrewDecember 29, 2005 11:04 AM

@ TBone

Paragraph and verse?

Title 50, Chapter 36, Subchapter 1, Section 1809, Paragraph (a) states the following:

A person is guilty of an offense if he intentionally--
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

So, now its your turn. Which statute (paragraph and verse, if you would be so kind) authorizes the president or the people at the NSA to do what they did?

TimBDecember 29, 2005 11:41 AM

Amazing that Congress impeached a president for lying about a BJ in the oval office, yet we have a clear violation of law and clearer indication of the abuse of the power of the Executive branch and Congress does nothing.

another_bruceDecember 29, 2005 11:58 AM

some company needs to come out with a little offline crypto-box for entering and storing your keys. you exchange keys with your correspondents face-to-face, or agree upon a protocol for discreetly embedding them in innocent emails. when you need help building your suitcase nuke or just getting ready to commit adultery, you turn on your crypto-box and toggle among the various keys, one for the sweetie in san francisco, one for the sweetie in vegas, one for osama bin laden, then type your plaintext into the little box and it yields ciphertext for you to type onto the hotmail screen displayed by your online pc. store the two boxes apart when you're not using them, and make sure the little crypto-box would be a bitch to find.
i don't know if this will hold off the department of homeland security, but it should be robust enough to hold off your wife.

David ThomasDecember 29, 2005 12:00 PM

At those concerned that we are applying a different standard to spying on Americans than spying on non-Americans, there is a very good reason for that. The American government is designed to keep itself accountable to the will of the people. Spying and similar can be used to influence politics, and undermines the People's ability to act against those in power. This is simply not the case when it comes to foreign surveillance. It's not the spying that's the primary problem, but the increase in power. A separate debate over whether spying in any context is appropriate may be interesting, but has always (to my knowledge) been decided the same way in the past, and is not a part of the present discussion.

Ian MarsmanDecember 29, 2005 12:13 PM

""At those concerned that we are applying a different standard to spying on Americans than spying on non-Americans, there is a very good reason for that....

A separate debate over whether spying in any context is appropriate may be interesting, but has always (to my knowledge) been decided the same way in the past, and is not a part of the present discussion."

Perhaps it should be. It seems to me that the software to do massive data mining of foreign phone and other communications has been very tempting indeed to use on US citizens. What you allow in one door can sooner or later come calling at another.

JarrodDecember 29, 2005 12:35 PM

@TimB:

He lied under oath. That's perjury.

As for this one, investigations take time. Arlen Specter is scheduling hearings in January, and seems to be expressing genuine concern over this. I'm not sure what the bookies are making of odds of impeachment, but even with a Republican-controlled Congress, it's not outside of the realm of possibility.

AnonymousDecember 29, 2005 1:10 PM

You know, this is a little off-topic, but since it's been brought up:

- If you were married to Hillary Clinton, would getting a little action from Monica Lewinsky seem like a good idea? Yes.

- If you were married to Hillary Clinton and were asked, even under oath, if you got any action from Monica Lewinsky, would admitting to the affair seem like a good idea? No.

Does anybody disagree? So what's the problem?

ARLDecember 29, 2005 1:10 PM

"I have long said that the currect power grab by the Executive is being accomplished with complacency from Congress. That doesn't make it right."

I would say that the "power grab" has been going on long enough that I see it more as a long term trend rather than "current"

It is always easier to gain re-election if you don't have to vote for things that you will be held accountable for. Let Ceasar decide what needs to be done.

I don't blame the presidents very much. There is a large part of human nature that deals with gaining control. If congress does not do its job the vacume will be filled.

Pat CahalanDecember 29, 2005 1:33 PM

@ Shura

Either everybody missed you, because you were top-poster, or nobody thought your post was as interesting as I do :)

> [snip] It always pains me that pretty much everyone
> who talks about these things only ever gets upset
> when they affect US-Americans - the same kind of
> spying is tolerated, or often even defended, when
> it applies to foreigners.

> I think there's a big ethical pitfall there, and
> many people don't even seem to realise it exists.
> Shouldn't the same ethical principles apply to everyone,
> no matter where they're from?

Short answer -> No.

Long answer ->

Presumably, citizens in other countries are protected under the laws of the nation in which they live (admittedly, there are plenty of current examples of the U.S. violating the sovereignty of other nations, but that is a separate albeit related issue).

A nation eavesdropping on citizens of another country is engaging in espionage. A nation eavesdropping on its own citizens is engaging in surveillance.

Intelligence gathered through espionage can only be used with the cooperation of the government under whose protection the target lies, unless you violate the sovereignty of the government in question. There is a built-in check-and-balance. If the U.S. discovers that a German citizen is engaged in plotting terrorist activities against the U.S., they have to either engage the German government to detain, question, etc. the subject, or they have to violate German autonomy and detain, question, etc. the subject outside of German law.

Intelligence gathered through surveillance can be used with very little oversight, and can cause a severe impact on liberties of citizens, and lead to internal oppression of the citizenry.

You do have a point in that the intelligence can be *misused* in either case (for example, the U.S. can blackmail foreign people using intelligence gathered through espionage), but this is true of any weapon.

Gerd RauschDecember 29, 2005 1:55 PM

@ Pat Cahalan

Pat Cahalan wrote:
"Presumably, citizens in other countries are protected under the laws
of the nation in which they live"

Shura wrote:
"Shouldn't the same ethical principles apply to everyone, no matter
where they're from?"

You guys are talking different terminology:
"in which they live" does not equate "where they're from".

Restricting one's residence and travel exclusively to your country
of citizenship can be very doable if the country of citizenship is
large enough (e.g. Russia, Canada, U.S.), but can be very restricting
if you're from let's say Iceland or Liechtenstein.

And that IMO was Shura's point:
The protection "under the laws of the nation in which they live"
depends on "where they're from".

Roy OwensDecember 29, 2005 2:09 PM

Let me see if I understand the logic here.

If a car thief briefs the DA and the PD that he has been, and will be, stealing cars in their jurisdiction, then they cannot prosecute him for GTA?

Apparently the US Supreme Court thinks so, so the lawyers for the car thieves should start using this argument as a legal basis to bar prosecution and police interference. They can call on US AG Alberto Gonzales for legal details.

Nick LancasterDecember 29, 2005 2:11 PM

@TBone:

Article II of the U.S. Constitution: "... (the President) shall take Care that the Laws are faithfully executed."

That sounds straightforward enough. In order to circumvent FISA and USA PATRIOT, Mr. Bush would need to be acting under the aegis of another law, or perhaps a published executive order.

If it's All About Terrorism, where's Osama? How did he go from being the Cause Celebre to 'irrelevant' ... and yet, his quotes are used in the National Strategy for Victory in Iraq, and he is, again, being mentioned in conjunction with Abu Musab al-Zarqawi.

Whether it was wishful thinking or a blatant failure of America's intelligence apparatus, there were no WMDs found in Iraq. If it was Bush's wishful thinking, I have no reason to trust his assurances on the legality or nature of presidential privlege; if it was a failure of the intelligence community, I have no reason to trust the NSA's ability to find salient material.

And if it's All About Terrorism, Mr. Bush's actions, being perceived as potentially illegal, are eliciting motions from defense attorneys whose clients are in custody or convicted of terrorist plots. Jose Padilla's attorneys claim his situation (held for 3+ years) highlights, 'the danger of an unchecked executive.'

This is very much pertinent to how America is fighting terrorism, and not just some drug-induced paranoid fantasy of Bush-hating liberals.

Ed T.December 29, 2005 2:23 PM

@Bruce Schneier,

OK, I have read in other writings of yours that one of the places we need to be spending resources is on intelligence gathering. Instead of arguing the legalities (or lack thereof) of the recently-publicized NSA activities (IANAL, and I'm not sure you are, either), how about where this meets the needs (or falls short) in the intel-gathering arena.

I see two distinct types of intelligence we need: 'background' intelligence (basically keeping our pulse on the events of the world), and 'tactical' intelligence (also called 'actionable' intelligence), where a specific event can be pinpointed (such as "a terrorist act is planned for a specific location on a specific day".) I see the need for both types of intel, and I also see that we (the USA) don't do a good job in collecting the background stuff (especially domestically), maybe because we simply don't trust the government not to abuse that type of power.

Now, there are other countries (Israel comes to mind) which appear to have this "domestic intelligence gathering" down pretty well. What are they doing that we should be doing (and aren't), and how do you propose such a capability be structured so as to allow the government to obtain the intel it needs while protecting Constitutional rights/civil liberties?

-EdT.

ZwackDecember 29, 2005 3:17 PM

EdT... Interesting comments...

I would argue that given that this administration has shown that it is willing to ignore Constitutional Rights, Civil Liberties and existing laws (in this one case alone) they should be given no further powers.

They would argue that they don't need to be given any additional powers as they have the right to take them (that's what their defence comes down to in this case as far as I can tell).

So, under this administation nothing should or needs to be done.

Under any other administration the FISA courts seem to be an acceptable method. It depends on what you mean by "Background intelligence". Monitoring what people say in public spaces (like this) should not require a warrant and could provide "background evidence", while wiretapping, reading email, whatever of someone who has no known ties to "evildoers" should not be done without an explicit warrant. And if there is no reason to grant a warrant then it shouldn't happen. This seems simple and straightforward to me.

Do you have any problem with it?

I guess it comes down to that "presumption of innocence" bit. I presume that people are innocent unless I have a preponderance of evidence against them, and so don't see why they need to be investigated. Bush wants to be able get that preponderance of evidence by watching everyone. That is the equivalent of a presumption of guilt.

Z.

Bruce SchneierDecember 29, 2005 3:37 PM

"...how do you propose such a capability be structured so as to allow the government to obtain the intel it needs while protecting Constitutional rights/civil liberties?"

Oversight. The security risk is abuse, and the best defense against abuse is publicity and oversight.

Imagine, for example, if the government had to publish the list of U.S. citizens they eavesdropped on -- say, one year after the fact. This allows anyone to check if the program is working: how many innocents versus how many arrests. (I am not necessarily proposing this exact program, but it's the kind of thing we should be thinking about.)

JamieDecember 29, 2005 3:38 PM

It's times like these that I'm glad I live a safe distance from the USA. From my small part of the world, it looks like most of the US takes a knee-jerk reaction to everything said/done against it. (I know this is a gross generalization - sorry to everyone out there who doesn't fall into this category.)

The worst part is that Dubya is taking full advantage of the situation, using it as a reason to push through his own agenda. Need an excuse to invade a country? Say they're a threat to the US. Want to spy on your own country? Say it's to keep the country safe.

All Bush has to do is make it sound like half the world is trying to destroy the US, and he can get away with just about anything.


-Jamie

p.s. I apologize to anyone who's offended by what I've said. I'm not trying to start a flame war. This is simply my view on the situation.

Hermann GoeringDecember 29, 2005 3:54 PM

@ jamie

I said this at Nuremburg during my trial and it's still true today.

"The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

Davi OttenheimerDecember 29, 2005 4:18 PM

"Oversight. The security risk is abuse, and the best defense against abuse is publicity and oversight."

Agreed. Here's a good example of a discussion underway in Austria:

http://www.wired.com/news/technology/...

"When the Austrian government passed a law this year allowing police to install closed-circuit surveillance cameras in public spaces without a court order, the Austrian civil liberties group Quintessenz vowed to watch the watchers.

Members of the organization worked out a way to intercept the camera images with an inexpensive, 1-GHz satellite receiver. The signal could then be descrambled using hardware designed to enhance copy-protected video as it's transferred from DVD to VHS tape.

[...]

And, just for fun, the group created an anonymous surveillance system that uses face-recognition software to place a black stripe over the eyes of people whose images are recorded."

So you can check the data to see if you've been watched. Obviously this compromises the deterence-by-obscurity of surveillance systems, but that's not what they're best for anyway.

AnonymouseDecember 29, 2005 4:39 PM

Schneier> I have long said that the currect power grab by the Executive is being accomplished with complacency from Congress. That doesn't make it right.

Indeed. Since it's illegal, it makes it a conspiracy.

Pat CahalanDecember 29, 2005 5:34 PM

@ Gerd

> And that IMO was Shura's point:
The protection "under
> the laws of the nation in which they live" depends on
> "where they're from".

Maybe I was misreading Shura, but I thought the point was, "Eavesdropping on people is an ethical question, regardless of whether you're eavesdropping on your own citizens or someone else."

My point was, there *is* a distinction between espionage and surveillance. Although both can be misused, there are barriers to misuse for intelligence gathered through espionage that don't exist for surveillance.

Beau MondayDecember 29, 2005 9:10 PM

"the subsequent Bush order that directed the NSA to eavesdrop on every phone call, e-mail message, and who-knows-what-else going into or out of the United States"

You make it sound like Bush authorized the NSA to eavesdrop on every phone call in the US. You know that's not true.

"Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA"

Bush's eavesdropping program? Every president in modern times, including Clinton, has executed these exact same types of programs. How did it become "Bush's eavesdropping program"?

C'mon Bruce, tone down the rhetoric. This is precisely the kind of sensationalism that I'm used to you railing against.

BMonday

Pat CahalanDecember 29, 2005 11:47 PM

> Every president in modern times, including Clinton, has
> executed these exact same types of programs.

That may or may not be true, but we have no documented case of a president doing this outside the bounds of FISA since its inception. If you have some sort of evidence to the contrary, I'd like to see a reference.

Regardless, presidental misbehavior isn't excused "because everyone else is doing it".

Which is the part that confuses me about the whole NSA affair. It is, by all accounts, fairly trivial for the NSA to get a court order to perform this sort of surveillance following the procedures established by FISA. The decision by the Bush administration to bypass the judicial oversight isn't due to any practical reason that I can think of.

It just seems to be exactly a case of ignoring the law essentially for the sake of arrogance alone.

David ThomasDecember 30, 2005 12:59 AM

"Here you go:

Jimmy Carter, 1979, authorizing warrantless wiretaps under FISA: http://www.fas.org/irp/offdocs/eo12139.htm

Bill Clinton in 1995 authorizing warrantless PHYSICAL searches under FISA: http://www.fas.org/irp/offdocs/eo/eo-12949.htm"

Three points:

1) This was done publicly, whereby we could actually have a national discussion of whether it was appropriate.

2) Should we not condemn murder, if someone got away with it in the past? If an earlier administration is guilty of similar crimes, they should be punished accordingly.

3) Please actually read the orders in question. They *do* allow warrantless searches, but only if the Attorney General certifies, among other things, that there is no "American person" involved. This may still be wrong, but is an entirely different kind of thing than spying on American citizens on American soil from both a statutory and constitutional standpoint.

Beau MondayDecember 30, 2005 1:11 AM

Well, I don't know who Scott from Austin is, I've only been there once and was disinclined to stay. I live in Seattle. I left my name and web address on my comment. I don't hide behind pseudonyms.

Regardless, Daily Kos is hardly an objective source, so it doesn't surprise me that they've shown Bush's actions are illegal. I could cite a Powerline post that shows that it certainly is legal, and what's more, been survived challenges in court time after time(http://powerlineblog.com/archives/012631.php)

And suggesting that the only possible reason Bush has for avoiding the FISA process is arrogance... well, that's about the silliest thing I've ever heard (well, today). We have no information about the surveillance performed to know if FISA even applied. There are a million reasons why FISA wouldn't have been appropriate, and I would place "arrogance" pretty far down on that list.

Nick LancasterDecember 30, 2005 1:23 AM

@ Beau:

And if neither FISA nor PATRIOT are sufficient to address the needs for this kind of surveillance, there is an accepted process for introducing legislation.

"We can't tell anyone because if we did, they'd know about it," is tautological and does not answer the questions/concerns about these wiretaps.

GordonjcpDecember 30, 2005 2:34 AM

The thing is, the USA has no experience of terrorism. You've never had to deal with it, so after one attack everyone starts panicking and throwing away their rights because they're terrified of some largely-imaginary bogeyman.

HexilDecember 30, 2005 7:14 AM

Schneier you are the last person I would have expected to be parrotting the idea that the NSA spies on US citizens' communications because of a "Bush order".

Got any thoughts what they were doing with the exact same technology, capabilities, staff, budget and programs before 9/11 and this order came through?

Bruce CleaverDecember 30, 2005 9:17 AM

@gordonjcp -

Well, we have _some_ experience; the WTC bombing in 1993, the USS Cole, several embassies abroad, and the guy trying to sneak explosives across the Canadian border for New Year's 2000 come to mind.

The whole point is, I think, to *not have* too much experience with terrorism. That sort of failure would be intolerable to the American public.

Al KennedyDecember 30, 2005 9:58 AM

@ Andrew and Bruce

Have either of you read this article?

http://www.therealitycheck.org/GuestColumnist/...

Just wondering how "Chapter and verse" listed above holds up against the author's 'justification'.

Each 'side' seems to have justifiable grounds to deem these actions "legal" (or not). I suppose it would really take a Supreme Court determination of all the statutes involved to really know if these actions are/were "legal".

David ThomasDecember 30, 2005 11:57 AM

http://www.therealitycheck.org/GuestColumnist/...

Um... It would appear that USSID are internal directives of the NSA[1]. They can hardly allow the NSA to do anything the NSA was not already allowed to do, if we have any illusion of checks and balances. Citing them here may be proof of earlier abuse, but does not lend any legal support. The president has an obligation to uphold the laws of the US. If an agency is acting illegally, he should prosecute, not say, "Excellent, do more of that."

Additionally, I would like to point out the following statement, http://www.nsa.gov/releases/relea00059.html, which contains:
"Under FISA, NSA may only target communications of a U.S. person in the United States if a federal judge finds probable cause to believe that the U.S. person is an agent of a foreign power."

It is further clearly stated in the statement that executive orders can impose additional constraints, but cannot loosen those applied by FISA.


[1] This is the best I can determine, I have been unable to find any primary source. If anyone knows of one, either direction, please point me to it.

DennisDecember 30, 2005 2:00 PM

Credible source on Project Shamrock would be James Bamford's books, mentioned above. Given that he won a Pulitzer I'd say he's reasonably credible.

Don't Believe the HypeDecember 30, 2005 2:29 PM

Ok, so by what means do us non-security experts do to help protect ourselves?

Is it already hopeless and we laymen should quit using technology?

I've enjoyed reading this website for about a month now, but with each new entry, I become even more frustrated. The problems are pointed out, and many times the answers are assumed. I don't mean you should dumb things down all the way, but maybe *occasionally* someone could toss out a recommendation to those of us less in the know. Maybe you'll achieve better overall security by a more informed masses.

Nick LancasterDecember 30, 2005 4:02 PM

@Hype:

In instances like this, where the security implications are outside one's immediate control, the answer is to be mindful and remain involved in politics, as well as to be a smart consumer.

That is, whether Mr. Bush is talking about a heretofore super-secret spy program, or mutli-billion dollar software to protect us against Tinky-Winky ... we all have a stake and a voice in that decision, expressed through writing one's senators and representative.

@ Hexil:

We acknowledge the NSA's technical capability, yet we trust them to follow the law. Mr. Bush's order would suggest that he/they are not, and thus the questions.

It's not about any one agency being inherently evil or anti-democratic.

Davi OttenheimerDecember 30, 2005 4:06 PM

"Ok, so by what means do us non-security experts do to help protect ourselves?"

You have lots of options, but at a high level I see the following two paths suggested regularly:

1) Attempt total surveillance of your own identity and be extra cautious about who/where/when you communicate in order to achieve a degree of anonymity that helps you protect your privacy as necessary. For example, never purchase anything in your own real name. Ever. Some do this by declaring their own ID secret and using the ID of a corporation (also considered a "person" under US law) public.

2) Actively cultivate and broadcast a wealth of information about your own identity to create a public record in order to achieve a degree of incontestability about yourself in order to protect your private self as necessary. For example, run for office and regularly rail against those evil-doers who are nothing like you. Yes it's propaganda, but just think about the movie stars who hire publicists to cultivate a more successful image for them.

Both have trade-offs and there are surely many combinations of these as well as other approaches. Good luck.

Oh, and don't forget to demand checks and balances and the human right to privacy be respected by government. Write your Senator today...

Bruce SchneierDecember 30, 2005 5:00 PM

"Credible source on Project Shamrock would be James Bamford's books, mentioned above. Given that he won a Pulitzer I'd say he's reasonably credible."

He is very credible on these issues. His second book was written with considerable access to NSA inside information.

Bruce SchneierDecember 30, 2005 5:03 PM

"I don't suppose you have a credible source proving the existance of 'Project shamrock.'"

Pretty much any history book of the topic and era. I don't think there's any dispute about the project, or its details. The government, the NSA, historians all agree. Bamford's books give a good history. The first book is more detailed, but the second has additional information because Bamford had the cooperation of the NSA when he wrote it. If you want to dealve into primary sources, there are declassified documents and the record of the Church Commission. Also, you can check out newspaper articles from the early 1970s when the program became public.

Honestly, there isn't any issue here.

Bruce SchneierDecember 30, 2005 5:04 PM

"The thing is, the USA has no experience of terrorism. You've never had to deal with it, so after one attack everyone starts panicking and throwing away their rights because they're terrified of some largely-imaginary bogeyman."

For the most part, I agree with this.

Scott From AustinDecember 30, 2005 6:31 PM

"For the most part, I agree with this."

Your statements is ambiguous. Can you specify which parts do you agree with and which parts to you disagree?

directorblueDecember 31, 2005 7:49 AM

*sigh*

I'll say it again. It's amazing how much information is out there in the New York Times' microfiche (not to mention the general Internet) that's left unreported. One can then only surmise that the latest revelations are the result of partisan hackery, rather than any general public interest.

Here's the New York Times on November 7, 1982:

"A federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents."

Is it too much to ask that the Times check their own microfiche first?


AnonymousDecember 31, 2005 10:47 AM

"A federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents."

1962 is pre-FISA. I disagree with that ruling in the first place, as it does seem to constitute a search, and so would be unconstitutional without a warrent, but that is beside the point. The court said it was legal then. The laws have changed. "Yes, officer, I'm in posession of several pounds of pot... it was legal before newer laws were passed, so I can't have committed a crime!"

2006_electionsDecember 31, 2005 12:45 PM

A couple of notes about this issue (Bush, NSA, and communication traffic analysis.)
1) Politicians justify their actions using whatever rationale is available (9-11). I think that they even lie to themselves about why they did something. President Bush will never admit that he did something wrong.
2) The primary reason Bush & co did not get court approval for these actions is because they could not. Poindexter's (sorry about the spelling) TIA had gotten voted against by two separate congresses and there is no way a judge could have approved massive wiretaps when Congress had twice denied this very sort of thing.
3) President Bush will not get impeached unless Congress approves and this will not happen unless Democrats gain control or a large number of moderate Republicans vote for impeachment. Either way, the 2006 congressional elections will worth watching.

peachpuffJanuary 1, 2006 2:02 AM

@directorblue

"Is it too much to ask that the Times check their own microfiche first?"

Do you have the name of the case? Courts keep better records, with much more accurate summaries.

directorblueJanuary 1, 2006 9:13 AM

'Here's the New York Times on November 7, 1982:

"A federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents." '

That snippet was published a few days ago in the Toledo Blade. Linkage here:

http://realclearpolitics.com/Commentary/...

and here:

http://toledoblade.com/apps/pbcs.dll/article?...

If you're motivated to pay for more detail, I would encourage you to further delve into the Times' archives.

Nick LancasterJanuary 1, 2006 4:49 PM

@Directorblue:

The Times quotes strikes me as being incomplete, or at least taken out of context. Part of the furor over Mr. Bush's actions is the 'warrantless' element.

If this ruling is still valid, why isn't it being presented as the foundation for the President's actions, instead of this whole song and dance about Article II and the Authorization to Use Force? Even Alberto Gonzales hasn't mentioned this, and you'd think HE'D have legal precedent lined up and ready to roll.

The law exists to protect US as well as the criminals/terrorists. The law is sufficient, as suggested by your finding. But Bush & Company are busy telling us it's not so - it's like a kid who didn't do his homework and is spending more time on his excuse as to how the dog ate it.

AnonymousJanuary 1, 2006 5:32 PM

I'm guessing the whole reason they don't want to go to the FISA court might be that the system automatically identifies 'targets' on-the-fly. Maybe there is some limit as to the size fo the working set, but I'm guessing that it's dynamic.

This would also imply that eveything is monitored to some degree. Thus the hair-splitting that goes on in the 'justifications'.

Just my 2 cents. Any thoughts?

David EJanuary 2, 2006 1:48 AM

@Directorblue

I read the complete article on Lexis-Nexis. The case in question, for anyone who cares, is <ABDEEN M. JABARA, Plaintiff-Appellee, v. WILLIAM H. WEBSTER, ET AL., Defendants-Appellants, No. 80-1391, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 691 F.2d 272; 1982 U.S. App.>

Although the NYT article was published in 1982, the surveillance in question began in 1967 and ended no later than 1972, six years *before* the 1978 FISA act.

The only place I can find the opinion freely available on the web is in Google's cache:

http://tinyurl.com/br8f6

I've scanned the decision. It appears that the court did not consider the question of the legality of the NSA wiretap. From the decision: "Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA."

Later on: "As heretofore stated, Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications. From this proposition defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a 'search' or 'seizure' within the meaning of the amendment."

Finally: "Applying this analysis utilized by our court in Bailey, we agree that Jabara exhibited an actual (subjective) expectation of privacy when he sent the telegraphic massages overseas. But the question here is whether he had an expectation of privacy that society is prepared to recognize as reasonable after the messages had lawfully come into the possession of the NSA. For it was after the messages were intercepted and within the possession of the NSA and only when they were delivered to the FBI that Jabara contents that his fourth amendment rights were violated. We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable. In this connection, we believe that it is irrelevant that Jabara did not know that the NSA had intercepted his messages. To hold otherwise would in many instances require, for fourth amendment purposes, a succession of warrants as information, lawfully acquired, is passed from one agency to another.

We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim."

To summarize: the surveillance in question occurred before the 1978 FISA law, and the court did not decide on the legality of the NSA wiretaps.

By the way, an article in today's Washington Post contains some very interesting historical context. Read the last four paragraphs:

http://www.washingtonpost.com/wp-dyn/content/...

It may be cliche, but history does indeed repeat itself.

David EJanuary 2, 2006 11:46 AM

"Pincus tries to breathe some life into his story . . . pathetic, frozen-in-the-1960s outlook . . ." I found the historic parallels interesting. If you don't, you don't.

More significantly, Powerline misses the point of the article. From the partisan blogger's perspective, the message Pincus is delivering must appear to something like, "Bush is even more vile than we thought. He shared the results of the Intelligence with other parts of the government!"

But if you calmly read the Post article, you'll see that Pincus says "Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies *that are allowed to have it*, including the FBI, DIA, CIA and Department of Homeland Security, one former official said." [emphasis mine] Clearly Pincus doesn't believe that sharing the results of the surveillance is, in and of itself, illegal.

What is the story here, then? One answer lies in the subhead: "Fruit of Eavesdropping." If the NSA's warrantless surveillance was illegal, then its results, depending on how they were used, may be what lawyers call Fruit of the Poison Tree, "evidence gathered with the aid of information obtained illegally" ( http://en.wikipedia.org/wiki/... )

Today, and thirty years ago, the warrantless domestic surveillance, though misguided, was initially the result of good intentions. Bush thinks he needs to do this to protect the nation. But, as Pincus shows, once these types of programs are created, they tend to expand in scope, and in the number of innocent people they scoop up along the way.

Don't Believe the HypeJanuary 2, 2006 2:02 PM

@Davi and Nick

Thank you for your responses.

Can either of you recommend further information sources such as forums or chat rooms where one may ask questions and get knowledgable answers.

I'd like to seek answers without hijacking Bruce's site.

directorblueJanuary 2, 2006 3:02 PM

@David, one other interesting aspect to this story (noted on Powerline) was the following:

"[President Bush] said that the program consists of tracking phone calls made from al Qaeda members overseas into the U.S. If that is correct, then the media's frequent references to "domestic spying" are incorrect. When asked what Bush has to say to those who are concerned about their civil liberties, he responded along the lines of, "If al Qaeda is calling you, we want to know why. I think that's reasonable."

The President also referred repeatedly to the limited nature of the program and the fact that its legality has repeatedly been reviewed...

...If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f) ..."

[appropriate statute follows]

AnonymousJanuary 2, 2006 4:54 PM

You would do much better to argue for amending the Constitution than calling illegal that which you don't seem familiar with.

Nick LancasterJanuary 2, 2006 6:13 PM

@Hype:

I tend to check the RSS Feeds here, the New York Times, and the Washington Post, as well as local papers (which often syndicated Associated Press, NYT, and Washington Post articles anyway).

My congressman tends to be fairly good at staying in touch with constituents, whether by regular newsletter or written response. (I had criticized him for his absence on an important vote, and he pointed out where he was and why he'd missed it.)

The other thing is to hone one's critical thinking skills and recognize flawed or insufficient arguments on their face. An excellent resource is the 'Rules for Rationals,' in the appendix of 'Psychology of the Psychic' by Marks & Kammeman. (The book itself is a look at psychics such as Uri Geller, but the Rules emphasize some common-sense practices that will serve you well.)

Grover GardnerJanuary 2, 2006 6:29 PM

doctorblue writes:

"[President Bush] said that the program consists of tracking phone calls made from al Qaeda members overseas into the U.S."

No,

"The White House later clarified Bush's remarks, saying he meant to say calls going to and originating from the U.S. were being monitored."

You also write:

"The President also referred repeatedly to the limited nature of the program and the fact that its legality has repeatedly been reviewed..."

Reviewed by who? Who signed off on this, exactly?

DavidJanuary 2, 2006 6:51 PM

@Hype

Good point about threadjacking. I think there are more general security implications to be taken from this (unintended consequences, information flow in a complex system), so I hope the discussion is still informative and relevant.

@Directorblue

I recommend reading some of the original reporting. The uproar is over surveillance that appears to be occuring *within* the United States. Nobody seems to be questioning the legality of foreign surveillance of calls that have one terminal in the U.S. From the original NYT article:

"Under the agency's long-standing rules, the NSA can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in this country by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can single out phone calls from someone in New York to someone in Afghanistan."

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/...

There are many unanswered questions, but the article contains hints about how surveillance targets are selected. I heard one person describe it as "Six Degrees of Kevin Al-Bacon."

In my experience, partisan blogs are frequently unreliable sources of information. I like to read the original reporting, then turn to blogs for analysis. That way, I can easily see what facts are being ignored or glossed over.

Bruce SchneierJanuary 2, 2006 7:57 PM

"You would do much better to argue for amending the Constitution than calling illegal that which you don't seem familiar with."

This can't possibly be addressed to me, can it? My familiarity with this program, whatever it is called, is at least as good as anyone else without a clearance.

Anyway, remember that any powers not specifically given to the government is reserved for the people. I would much rather that Bush tried to amend the Constitution than decide that it means whatever he wants it to mean. It actually isn't just a goddamned piece of paper.

TankJanuary 2, 2006 9:01 PM

"Can either of you recommend further information sources such as forums or chat rooms where one may ask questions and get knowledgable answers."

I read Volokh.com which is just legal analysis. There are a couple of other legal blogs like IsThatLegal.org and you should find the rest via the sidebar links on each site.

Searches via Technorati and google blogsearch for obscure terms should help you turn up blogs dedicated to specific topics.

Nick LancasterJanuary 3, 2006 1:54 AM

@directorblue:

I checked out the PowerLine blog, and - unfortunately, they tripped off a couple of alarms on my end, most notably, citing Clinton-era NSA activity that supposedly included baby monitors.

First, the fact that Clinton did or did not do anything does not make it more or less legal.

Second, we're talking baby monitors. Hell, a NASCAR-fan with a halfway decent scanner can listen in on those. (Or, as was demonstrated by one news reporter some years back, you could just run down to Radio Shack, buy the same kit, and tap into the signal being broadcast.)

Powerline appears to be a good blog if one is interested in the conservative take ... but the above didn't yield good marks for reasoning.

directorblueJanuary 3, 2006 5:18 AM

@Grover:

"Reviewed by who? Who signed off on this, exactly?"

"...Every 45 days or so it is carefully reviewed; it must have the approval of top legal officials from the Attorney General to the White House Counsel. The activities that are conducted under this authorization are thoroughly reviewed by the Department of Justice and by the National Security Agency legal officials, including the General Counsel and the Inspector General. There is intense oversight of it, as General Hayden, the Deputy Director of National Intelligence, talked about. And the decisions that are made under this authorization, which is very limited, again, are made by career intelligence officials at NSA..."

http://usinfo.state.gov/xarchives/display.html?...

Bruce CleaverJanuary 3, 2006 10:17 AM

@Hype -

I also recommend www.volokh.com, which has first rate legal analyses (and tedious but necessary legal expostion from knowledgeable readers) about the NSA stories.

Pat CahalanJanuary 3, 2006 10:28 AM

@ directorblue

Your list of oversight mechanisms includes a great many administration appointees and nothing in the way of oversight by other governmental bodies. The DOJ is a department of the Executive branch, not the Legislative or Judicial. You can't have effective oversight if the people "signing off" all work under you in an org chart :)

Bush states that Congressional members were briefed, but (as yet, anyway), I haven't heard which congressmen were briefed, exactly. Moreover, "briefing" isn't the same as "signed off".

Also, "top officials" != "Who signed off on this, exactly?" Top officials isn't an exact term.

re: Powerline

Not to dispute any blog's credibility, but Powerline is definitely a partisan blog, set up and run by conservatives, by its own admission.

This means that any discussion of the issues on Powerline is going to lack a full analysis, in the same way that a liberal blog would lack a full analysis. High powered attorneys who share the same political leanings aren't going to debate a topic as thoroughly or as well as high powered attorneys who are polarized politically.

One of the nice things about Bruce's blog is that it's a security blog, which means that we get liberals and conservatives and libertarians and greens and even the occasional anarchist. Political leanings aside, security is security.

And regardless of your political leanings, you have to admit that a oversight body should not be subservient to the body it's auditing -> that's horrible security. Whether or not it is or was abused is irrelevent, it's just bad security.

DennisJanuary 3, 2006 11:53 AM

"Anyway, remember that any powers not specifically given to the government is reserved for the people."

Man, I love it when somebody remembers that for a change. Not many people do these days.

AnonymousJanuary 3, 2006 6:32 PM

"Anyway, remember that any powers not specifically given to the government is reserved for the people."

... or the states, of course, though that's not relevant to this case.

directorblueJanuary 3, 2006 7:08 PM

@Pat -

The list of folks who participated does include a variety of bi-partisan Congress-folks (including members of the SSCI such as Jay Rockefeller).

Recall that in 2003, Rockefeller claims he stuffed a CYA note in his safe, rather than register a formal complaint with the AG's office (who were already cleared on the taps). It does make you wonder about his motivations.

AnonymousJanuary 3, 2006 11:38 PM

"Recall that in 2003, Rockefeller claims he stuffed a CYA note in his safe, rather than register a formal complaint with the AG's office (who were already cleared on the taps). It does make you wonder about his motivations."

From what I heard, he sent the letter... but that aside, a few select members of the Congress is not "congressional approval" and I would hardly expect Jay Rockefeller to strongly advocate *less* power for the government... Who cares whether he's trying to cover his ass? That's an issue for his next election, and has no bearing on anything here.

Pat CahalanJanuary 4, 2006 11:28 AM

@ directorblue

> The list of folks who participated does include a variety
> of bi-partisan Congress-folks (including members of the
> SSCI such as Jay Rockefeller)

Jay Rockefeller is indeed a registered Democrat, but without delving into his voting record I don't know how "bi-partisan" he really is - I'm not West Virginian and have a hard enough time tracking my own senators and congresspeople. However, as Anonymous (11:38 pm 01/03/2006) said, a few select members of Congress is not "congressional approval".

In particular, without knowing
(a) who, exactly, was informed
(b) when they were informed
(c) how they were approached
(d) what they got out of the deal

we can't objectively measure if there are conflicts on interest going on in this exchange.

Again, you're dodging my point -> to have true oversight/audit, you have to have independence between the parties. With all of the communications between the Administration and the "people in the know" being muddled, you can't possibly convince me that this is a reasonable oversight process.

Especially considering that there already is a methodology for oversight (using the FISA court) that was simply bypassed.

If the surveillance was so legitimate, what was the rationale behind circumventing the existing oversight mechanism... and if this rationale is in fact reasonable, (as Bruce pointed out), why wasn't an attempt made to change the oversight mechanism within the bounds of the law?

directorblueJanuary 4, 2006 7:46 PM

The Senate Select Committee on Intelligence (SSCI) is populated with members of both parties. Due to reasons of operational security, you cannot widely share these kinds of classified operations with "all of Congress". That's what the SSCI is for.

Bottom line is that the relevant folks in the Congress, the AG's office, White House counsel, the Pentagon -- all of whom are bound by the same statutes -- cleared the international taps.

And, putting at its face value, do you think it odd that Congress would intend for the President to kill terrorists... but not to wiretap them?

Davi OttenheimerJanuary 4, 2006 9:59 PM

"Bottom line is that the relevant folks in the Congress, the AG's office, White House counsel, the Pentagon...cleared the international taps."

Wha? The issue was the more-general-than-international taps, right? Besides that, I guess you agree with the definition of "cleared" that the Administration is flocking:

"Got my memo? Good, now go away."

Every time someone suggests that there was real oversight, it weakens the President's case because it erodes his policy of "I'm in charge, damn it". Don't forget that the whole line of reasoning behind the need to restoke the Exec powers, fueled by Cheney's vision of governance, was that the Pres should get to do as he pleases without checks and balances because his role is to know what's best for the country. Yeah, even violating the Geneva convention was fair game according to the now-AG if the Pres said so. This was then coupled with the fact that his party was put in control of both houses and the supreme court.

Now, when the @#$% actually hits the fan, the Pres tries to find a way to say the opposing party was at fault? Yeah. When your hand is still in the cookie jar, don't try to blame the dog.

David ThomasJanuary 4, 2006 10:22 PM

"And, putting at its face value, do you think it odd that Congress would intend for the President to kill terrorists... but not to wiretap them?"

Okay, as much as I try to keep things civil...

#$^*&!*@!#$!

Pat CahalanJanuary 5, 2006 10:20 AM

@ directorblue

You keep avoiding one of my main points, namely that there was already an oversight mechanism in place (FISA) which was ignored. Implementing your own oversight methodology while disregarding the existing methodology doesn't make your activity "okay". I still have seen no compelling justification for bypassing the existing secret court oversight process, especially given that the AG can authorize this sort of activity *before* getting authorization, as long as he reports it to the court.

> The Senate Select Committee on Intelligence (SSCI) is populated
> with members of both parties.

I know that. The committee members are split 8-7 Republican-Democrat, with Ex-Officio Members splitting 2-1 on the same vein. This isn't a partisan political issue, so the composition of the comittee is only partially relevant.

Read the jurisdiction statement from the SSCI's own website - http://intelligence.senate.gov/juris.htm

Created pursuant to S.Res. 400, 94th Congress: to oversee and make continuing studies of the intelligence activities and programs of the United States Government, and to submit to the Senate appropriate proposals for legislation and report to the Senate concerning such intelligence activities and programs. In carrying out this purpose, the Select Committee on Intelligence shall make every effort to assure that the appropriate departments and agencies of the United States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interests of the Nation. It is further the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States.

The first sentence includes three main purposes: to oversee intelligence activities, to propose legislation to the Senate, and to report on intelligence activities to the Senate. Any way you slice it, the NSA affair represents a failure of two of these purposes -> no legislation was proposed to the Senate to change the existing legislation (FISA), and no report was made to the Senate regarding these activities. The SSCI has no authorization capability. They cannot approve intelligence activity themselves. They can only receive reports about intelligence activity, compare that activity to existing law, and report to the remainder of the Senate appropriately.

> Due to reasons of operational security, you cannot widely share
> these kinds of classified operations with "all of Congress".
> That's what the SSCI is for.

This is, by their own jurisdiction statement, *not* what the SSCI is for. This sort of intelligence operation, which operates outside of the bounds of existing legislation, would be precisely the sort of activity for which the SSCI should propose legislation.

("Due to reasons of operational security" is, by the way, a vastly overused and largely incorrectly applied justification for secrecy. In this particular case, it's totally absurd -> why would informing all of Congress endanger this program? And indeed, if informing all of Congress *would* endanger this program, why inform them in the first place? Simply use *the existing FISA court, set up for this purpose*. Then you can inform the SSCI, and they don't have an obligation to tell the rest of the Senate, because you're not asking them to change existing law!)

> Bottom line is that the relevant folks in the Congress, the AG's
> office, White House counsel, the Pentagon -- all of whom are bound
> by the same statutes -- cleared the international taps.

Unfortunately, no. The relevant folks would have been the FISA court members. If you want to change the FISA legislation, the relevant folks would have been the Senate and the House of Representatives. In either case, the people informed do not have the authority to authorize this activity.

> And, putting at its face value, do you think it odd that Congress
> would intend for the President to kill terrorists... but not to
> wiretap them?

Putting it at face value? If the President ordered an American citizen, who was within the borders of the United States and within the jurisdiction of law enforcement agencies, and who was suspected of terrorism, assassinated (as opposed to arrested and tried), I would expect that he would be tossed out of office.

So no, I don't think Congress intends for the President to "kill terrorists". And regardless of what Congress *intends* or *wants*, the question at hand is "what are they authorized to do?"

ohwellJanuary 6, 2006 5:31 PM

well when it goes to phone calls, and decided needs to communicate, and the lines are taken away, and companies explain that the number can no longer be connected,and letters opened and questions asked over the amount of phone calls, and why, and decisions made
that its not needed.
sorry these are our decisions to make, not the presidents or his designate to decided on an open basis. or has foreign frioends been outlawed also.
seems that way, and decisions made for us, whether we have the right to?
sorry i havent supported this country its people and the life, to be harrassed,and told where we can go and what we are allowed to do, talking authoritarian governement bush is leading the way to it.
its against the constitution,morals,and rights of freedom, and above all our privacy.
so why doesnt the press print what bush and his wife talks about during sex at night, this is what some records contain they are holding. from men engaged to foriegn ladies. so hows your love life lets print it and save it for the
nsa and the dxepartment of state and justice.
why not its all within the bounds of big brother isn't it!

SkidooFebruary 15, 2006 3:36 PM

(I'm a little late to the party; sorry)

I really enjoy your work Mr. Schneier, but this article seems to me to be just another example of the same uninformed histrionics I hear coming from the talking heads on TV.

The Supreme Court has (essentially) already ruled on the question of whether the President was acting within his legal authority when he ordered the implementation of the Terrorist Surveillance Program. Specifically applicable is their ruling on battlefield detention, re the Guantanamo detainees.

The Supreme Court concluded that when Congress overwhelmingly approved the Authorization for the Use of Military Force in the days after September 11th they explicitly gave the President the authority to use "fundamental and accepted incidents of military force in our armed conflict with al-Qaeda." Surely intelligence gathering (particularly that of a tactical nature) can be fairly categorized as a "fundamental and accepted" component of military force.

Mr. Schneier, I'm dispapointed to see a security expert such as yourself wading into the murky waters of legality and partisan politics. I would have preferred a more in-depth analyses of the technologies utilized and the potential effectiveness of such a (supposedly) wide-ranging program. That's why I come here--for the type of stuff those clones on the television never dream of getting into.

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