Entries Tagged "FISA"

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How the FISA Court Undermines Trust

This is a succinct explanation of how the secrecy of the FISA court undermines trust.

Surveillance types make a distinction between secrecy of laws, secrecy of procedures and secrecy of operations. The expectation is that the laws that empower or limit the government’s surveillance powers are always public. The programs built atop those laws are often secret. And the individual operations are almost always secret. As long as the public knows about and agreed to the law, the thinking goes, it’s okay for the government to build a secret surveillance architecture atop it.

But the FISA court is, in effect, breaking the first link in that chain. The public no longer knows about the law itself, and most of Congress may not know, either. The courts have remade the law, but they’ve done so secretly, without public comment or review.

Reminds me of the two types of secrecy I wrote about last month.

Posted on July 23, 2013 at 1:00 PMView Comments

The Office of the Director of National Intelligence Defends NSA Surveillance Programs

Here’s a transcript of a panel discussion about NSA surveillance. There’s a lot worth reading here, but I want to quote Bob Litt’s opening remarks. He’s the General Counsel for ODNI, and he has a lot to say about the programs revealed so far in the Snowden documents.

I’m reminded a little bit of a quote that, like many quotes, is attributed to Mark Twain but in fact is not Mark Twain’s, which is that a lie can get halfway around the world before the truth gets its boots on. And unfortunately, there’s been a lot of misinformation that’s come out about these programs. And what I would like to do in the next couple of minutes is actually go through and explain what the programs are and what they aren’t.

I particularly want to emphasize that I hope you come away from this with the understanding that neither of the programs that have been leaked to the press recently are indiscriminate sweeping up of information without regard to privacy or constitutional rights or any kind of controls. In fact, from my boss, the director of national intelligence, on down through the entire intelligence community, we are in fact sensitive to privacy and constitutional rights. After all, we are citizens of the United States. These are our rights too.

So as I said, we’re talking about two types of intelligence collection programs. I want to start discussing them by making the point that in order to target the emails or the phone calls or the communications of a United States citizen or a lawful permanent resident of the United States, wherever that person is located, or of any person within the United States, we need to go to court, and we need to get an individual order based on probable cause, the equivalent of an electronic surveillance warrant.

That does not mean and nobody has ever said that that means we never acquire the contents of an email or telephone call to which a United States person is a party. Whenever you’re doing any collection of information, you’re going to — you can’t avoid some incidental acquisition of information about nontargeted persons. Think of a wiretap in a criminal case. You’re wiretapping somebody, and you intercept conversations that are innocent as well as conversations that are inculpatory. If we seize somebody’s computer, there’s going to be information about innocent people on that. This is just a necessary incident.

What we do is we impose controls on the use of that information. But what we cannot do — and I’m repeating this — is go out and target the communications of Americans for collection without an individual court order.

So the first of the programs that I want to talk about that was leaked to the press is what’s been called Section 215, or business record collection. It’s called Section 215 because that was the section of the Patriot Act that put the current version of that statute into place. And under that ­ this statute, we collect telephone metadata, using a court order which is authorized by the Foreign Intelligence Surveillance Act, under a provision which allows a government to obtain business records for intelligence and counterterrorism purposes. Now, by metadata, in this context, I mean data that describes the phone calls, such as the telephone number making the call, the telephone number dialed, the data and time the call was made and the length of the call. These are business records of the telephone companies in question, which is why they can be collected under this provision.

Despite what you may have read about this program, we do not collect the content of any communications under this program. We do not collect the identity of any participant to any communication under this program. And while there seems to have been some confusion about this as recently as today, I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information. I’m not sure why it’s been so hard to get people to understand that because it’s been said repeatedly.

When the court approves collection under this statute, it issues two orders. One order, which is the one that was leaked, is an order to providers directing them to turn the relevant information over to the government. The other order, which was not leaked, is the order that spells out the limitations on what we can do with the information after it’s been collected, who has access, what purposes they can access it for and how long it can be retained.

Some people have expressed concern, which is quite a valid concern in the abstract, that if you collect large quantities of metadata about telephone calls, you could subject it to sophisticated analysis, and using those kind of analytical tools, you can derive a lot of information about people that would otherwise not be discoverable.

The fact is, we are specifically not allowed to do that kind of analysis of this data, and we don’t do it. The metadata that is acquired and kept under this program can only be queried when there is reasonable suspicion, based on specific, articulable facts, that a particular telephone number is associated with specified foreign terrorist organizations. And the only purpose for which we can make that query is to identify contacts. All that we get under this program, all that we collect, is metadata. So all that we get back from one of these queries is metadata.

Each determination of a reasonable suspicion under this program must be documented and approved, and only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism-related queries.

In 2012 fewer than 300 identifiers were approved for searching this data. Nevertheless, we collect all the data because if you want to find a needle in the haystack, you need to have the haystack, especially in the case of a terrorism-related emergency, which is — and remember that this database is only used for terrorism-related purposes.

And if we want to pursue any further investigation as a result of a number that pops up as a result of one of these queries, we have to do, pursuant to other authorities and in particular if we want to conduct electronic surveillance of any number within the United States, as I said before, we have to go to court, we have to get an individual order based on probable cause.

That’s one of the two programs.

The other program is very different. This is a program that’s sometimes referred to as PRISM, which is a misnomer. PRISM is actually the name of a database. The program is collection under Section 702 of the Foreign Intelligence Surveillance Act, which is a public statute that is widely known to everybody. There’s really no secret about this kind of collection.

This permits the government to target a non-U.S. person, somebody who’s not a citizen or a permanent resident alien, located outside of the United States, for foreign intelligence purposes without obtaining a specific warrant for each target, under the programmatic supervision of the FISA Court.

And it’s important here to step back and note that historically and at the time FISA was originally passed in 1978, this particular kind of collection, targeting non-U.S. persons outside of the United States for foreign intelligence purposes, was not intended to be covered by FISA as ­ at all. It was totally outside of the supervision of the FISA Court and totally within the prerogative of the executive branch. So in that respect, Section 702 is properly viewed as an expansion of FISA Court authority, rather than a contraction of that authority.

So Section 702, as I — as I said, it’s — is limited to targeting foreigners outside the United States to acquire foreign intelligence information. And there is a specific provision in this statute that prohibits us from making an end run about this, about — on this requirement, because we are expressly prohibited from targeting somebody outside of the United States in order to obtain some information about somebody inside the United States. That is to say, if we know that somebody outside of the United States is communicating with Spike Bowman, and we really want to get Spike Bowman’s communications, we’ve got to get an electronic surveillance order on Spike Bowman. We cannot target the out ­ the person outside of the United States to collect on Spike.

In order to use Section 702, the government has to obtain approval from the FISA Court for the plan it intends to use to conduct the collection. This plan includes, first of all, identification of the foreign intelligence purposes of the collection; second, the plan and the procedures for ensuring that the individuals targeted for collection are in fact non-U.S. persons who are located outside of the United States. These are referred to as targeting procedures. And in addition, we have to get approval of the government’s procedures for what it will do with information about a U.S. person or someone inside the United States if we get that information through this collection. These procedures, which are called minimization procedures, determine what we can keep and what we can disseminate to other government agencies and impose limitations on that. And in particular, dissemination of information about U.S. persons is expressly prohibited unless that information is necessary to understand foreign intelligence or to assess its importance or is evidence of a crime or indicates a — an imminent threat of death or serious bodily harm.

And again, these procedures, the targeting and minimization procedures, have to be approved by the FISA court as consistent with the statute and consistent with the Fourth Amendment. And that’s what the Section 702 collection is.

The last thing I want to talk about a little bit is the myth that this is sort of unchecked authority, because we have extensive oversight and control over the collection, which involves all three branches of government. First, NSA has extensive technological processes, including segregated databases, limited access and audit trails, and they have extensive internal oversight, including their own compliance officer, who oversees compliance with the rules.

Second, the Department of Justice and my office, the Office of the Director of National Intelligence, are specifically charged with overseeing NSA’s activities to make sure that there are no compliance problems. And we report to the Congress twice a year on the use of these collection authorities and compliance problems. And if we find a problem, we correct it. Inspectors general, independent inspectors general, who, as you all know, also have an independent reporting responsibility to Congress, also are charged with undertaking a review of how these surveillance programs are carried out.

Any time that information is collected in violation of the rules, it’s reported immediately to the FISA court and is also reported to the relevant congressional oversight committees. It doesn’t matter how small the — or technical the violation is. And information that’s collected in violation of the rules has to be purged, with very limited exceptions.

Both the FISA court and the congressional oversight committees, which are Intelligence and Judiciary, take a very active role in overseeing this program and ensuring that we adhere to the requirements of the statutes and the court orders. And let me just stop and say that the suggestion that the FISA court is a rubber stamp is a complete canard, as anybody who’s ever had the privilege of appearing before Judge Bates or Judge Walton can attest.

Now, this is a complex system, and like any complex system, it’s not error free. But as I said before, every time we have found a mistake, we’ve fixed it. And the mistakes are self-reported. We find them ourselves in the exercise of our oversight. No one has ever found that there has ever been — and by no one, I mean the people at NSA, the people at the Department of Justice, the people at the Office of the Director of National Intelligence, the inspectors general, the FISA court and the congressional oversight committees, all of whom have visibility into this — nobody has ever found that there has ever been any intentional effort to violate the law or any intentional misuse of these tools.

As always, the fundamental issue is trust. If you believe Litt, this is all very comforting. If you don’t, it’s more lies and misdirection. Taken at face value, it explains why so many tech executives were able to say they had never heard of PRISM: it’s the internal NSA name for the database, and not the name of the program. I also note that Litt uses the word “collect” to mean what it actually means, and not the way his boss, Director of National Intelligence James Clapper, Jr., used it to deliberately lie to Congress.

Posted on July 4, 2013 at 7:07 AMView Comments

How the NSA Eavesdrops on Americans

Two weeks ago, the Guardian published two new Snowden documents. These outline how the NSA’s data-collection procedures allow it to collect lots of data on Americans, and how the FISA court fails to provide oversight over these procedures.

The documents are complicated, but I strongly recommend that people read both the Guardian analysis and the EFF analysis — and possibly the USA Today story.

Frustratingly, this has not become a major news story. It isn’t being widely reported in the media, and most people don’t know about it. At this point, the only aspect of the Snowden story that is in the news is the personal story. The press seems to have had its fill of the far more important policy issues.

I don’t know what there is that can be done about this, but it’s how we all lose.

Posted on July 1, 2013 at 12:16 PMView Comments

FBI/CIA/NSA Information Sharing Before 9/11

It’s conventional wisdom that the legal “wall” between intelligence and law enforcement was one of the reasons we failed to prevent 9/11. The 9/11 Comission evaluated that claim, and published a classified report in 2004. The report was released, with a few redactions, over the summer: “Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations,” 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.

The report concludes otherwise:

“The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand,” the 35-page monograph concludes. “Simply put, there was no legal reason why the information could not have been shared.”

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains. The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance. Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance. Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place. And so on. Although not mentioned in the monograph, it probably didn’t help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a “rubber stamp” and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution.

James Bamford comes to much the same conclusion in his book, The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America: there was no legal wall that prevented intelligence and law enforcement from sharing the information necessary to prevent 9/11; it was inter-agency rivalries and turf battles.

Posted on November 12, 2009 at 2:26 PMView Comments

NSA Intercepts Used to Convict Liquid Bombers

Three of the UK liquid bombers were convicted Monday. NSA-intercepted e-mail was introduced as evidence in the trial:

The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.

That trial resulted in the men being convicted of conspiracy to commit murder; but a jury was not convinced that they had planned to use soft drink bottles filled with liquid explosives to blow up seven trans-Atlantic planes — the charge for which they were convicted this week in a second trial.

According to Channel 4, the NSA had previously shown the e-mails to their British counterparts, but refused to let prosecutors use the evidence in the first trial, because the agency didn’t want to tip off an alleged accomplice in Pakistan named Rashid Rauf that his e-mail was being monitored. U.S. intelligence agents said Rauf was al Qaeda’s director of European operations at the time and that the bomb plot was being directed by Rauf and others in Pakistan.

The NSA later changed its mind and allowed the evidence to be introduced in the second trial, which was crucial to getting the jury conviction. Channel 4 suggests the NSA’s change of mind occurred after Rauf, a Briton born of Pakistani parents, was reportedly killed last year by a U.S. drone missile that struck a house where he was staying in northern Pakistan.

Although British prosecutors were eager to use the e-mails in their second trial against the three plotters, British courts prohibit the use of evidence obtained through interception. So last January, a U.S. court issued warrants directly to Yahoo to hand over the same correspondence.

It’s unclear if the NSA intercepted the messages as they passed through internet nodes based in the U.S. or intercepted them overseas.

EDITED TO ADD (9/9): Just to be sure, this has nothing to do with any illegal warrantless wiretapping the NSA has done over the years; the wiretap used to intercept these e-mails was obtained with a FISA warrant.

Posted on September 9, 2009 at 10:10 AMView Comments

Audit

As the first digital president, Barack Obama is learning the hard way how difficult it can be to maintain privacy in the information age. Earlier this year, his passport file was snooped by contract workers in the State Department. In October, someone at Immigration and Customs Enforcement leaked information about his aunt’s immigration status. And in November, Verizon employees peeked at his cell phone records.

What these three incidents illustrate is not that computerized databases are vulnerable to hacking — we already knew that, and anyway the perpetrators all had legitimate access to the systems they used — but how important audit is as a security measure.

When we think about security, we commonly think about preventive measures: locks to keep burglars out of our homes, bank safes to keep thieves from our money, and airport screeners to keep guns and bombs off airplanes. We might also think of detection and response measures: alarms that go off when burglars pick our locks or dynamite open bank safes, sky marshals on airplanes who respond when a hijacker manages to sneak a gun through airport security. But audit, figuring out who did what after the fact, is often far more important than any of those other three.

Most security against crime comes from audit. Of course we use locks and alarms, but we don’t wear bulletproof vests. The police provide for our safety by investigating crimes after the fact and prosecuting the guilty: that’s audit.

Audit helps ensure that people don’t abuse positions of trust. The cash register, for example, is basically an audit system. Cashiers have to handle the store’s money. To ensure they don’t skim from the till, the cash register keeps an audit trail of every transaction. The store owner can look at the register totals at the end of the day and make sure the amount of money in the register is the amount that should be there.

The same idea secures us from police abuse, too. The police have enormous power, including the ability to intrude into very intimate aspects of our life in order to solve crimes and keep the peace. This is generally a good thing, but to ensure that the police don’t abuse this power, we put in place systems of audit like the warrant process.

The whole NSA warrantless eavesdropping scandal was about this. Some misleadingly painted it as allowing the government to eavesdrop on foreign terrorists, but the government always had that authority. What the government wanted was to not have to submit a warrant, even after the fact, to a secret FISA court. What they wanted was to not be subject to audit.

That would be an incredibly bad idea. Law enforcement systems that don’t have good audit features designed in, or are exempt from this sort of audit-based oversight, are much more prone to abuse by those in power — because they can abuse the system without the risk of getting caught. Audit is essential as the NSA increases its domestic spying. And large police databases, like the FBI Next Generation Identification System, need to have strong audit features built in.

For computerized database systems like that — systems entrusted with other people’s information — audit is a very important security mechanism. Hospitals need to keep databases of very personal health information, and doctors and nurses need to be able to access that information quickly and easily. A good audit record of who accessed what when is the best way to ensure that those trusted with our medical information don’t abuse that trust. It’s the same with IRS records, credit reports, police databases, telephone records – anything personal that someone might want to peek at during the course of his job.

Which brings us back to President Obama. In each of those three examples, someone in a position of trust inappropriately accessed personal information. The difference between how they played out is due to differences in audit. The State Department’s audit worked best; they had alarm systems in place that alerted superiors when Obama’s passport files were accessed and who accessed them. Verizon’s audit mechanisms worked less well; they discovered the inappropriate account access and have narrowed the culprits down to a few people. Audit at Immigration and Customs Enforcement was far less effective; they still don’t know who accessed the information.

Large databases filled with personal information, whether managed by governments or corporations, are an essential aspect of the information age. And they each need to be accessed, for legitimate purposes, by thousands or tens of thousands of people. The only way to ensure those people don’t abuse the power they’re entrusted with is through audit. Without it, we will simply never know who’s peeking at what.

This essay first appeared on the Wall Street Journal website.

Posted on December 10, 2008 at 2:21 PMView Comments

Interview with National Intelligence Director Mike McConnell

Mike McConnell, U.S. National Intelligence Director, gave an interesting interview to the El Paso Times.

I don’t think he’s ever been so candid before. For example, he admitted that the nation’s telcos assisted the NSA in their massive eavesdropping efforts. We already knew this, of course, but the government has steadfastly maintained that either confirming or denying this would compromise national security.

There are, of course, moments of surreality. He said that it takes 200 hours to prepare a FISA warrant. Ryan Single calculated that since there were 2,167 such warrants in 2006, there must be “218 government employees with top secret clearances sitting in rooms, writing only FISA warrants.” Seems unlikely.

But most notable is this bit:

Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?

A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing. We need to have the debate.

Ah, the politics of fear. I don’t care if it’s the terrorists or the politicians, refuse to be terrorized. (More interesting discussions on the interview here, here, here, here, here, and here.)

Posted on August 24, 2007 at 6:30 AMView Comments

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 AMView Comments

NSA and Bush's Illegal Eavesdropping

When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place to protect Americans against widespread government eavesdropping. The reason may have been to tap the NSA’s capability for data-mining and widespread surveillance.

Illegal wiretapping of Americans is nothing new. In the 1950s and ’60s, in a program called “Project Shamrock,” the NSA intercepted every single telegram coming into or going out of the United States. It conducted eavesdropping without a warrant on behalf of the CIA and other agencies. Much of this became public during the 1975 Church Committee hearings and resulted in the now famous Foreign Intelligence Surveillance Act (FISA) of 1978.

The purpose of this law was to protect the American people by regulating government eavesdropping. Like many laws limiting the power of government, it relies on checks and balances: one branch of the government watching the other. The law established a secret court, the Foreign Intelligence Surveillance Court (FISC), and empowered it to approve national-security-related eavesdropping warrants. The Justice Department can request FISA warrants to monitor foreign communications as well as communications by American citizens, provided that they meet certain minimal criteria.

The FISC issued about 500 FISA warrants per year from 1979 through 1995, and has slowly increased subsequently — 1,758 were issued in 2004. The process is designed for speed and even has provisions where the Justice Department can wiretap first and ask for permission later. In all that time, only four warrant requests were ever rejected: all in 2003. (We don’t know any details, of course, as the court proceedings are secret.)

FISA warrants are carried out by the FBI, but in the days immediately after the terrorist attacks, there was a widespread perception in Washington that the FBI wasn’t up to dealing with these new threats — they couldn’t uncover plots in a timely manner. So instead the Bush administration turned to the NSA. They had the tools, the expertise, the experience, and so they were given the mission.

The NSA’s ability to eavesdrop on communications is exemplified by a technological capability called Echelon. Echelon is the world’s largest information “vacuum cleaner,” sucking up a staggering amount of voice, fax, and data communications — satellite, microwave, fiber-optic, cellular and everything else — from all over the world: an estimated 3 billion communications per day. These communications are then processed through sophisticated data-mining technologies, which look for simple phrases like “assassinate the president” as well as more complicated communications patterns.

Supposedly Echelon only covers communications outside of the United States. Although there is no evidence that the Bush administration has employed Echelon to monitor communications to and from the U.S., this surveillance capability is probably exactly what the president wanted and may explain why the administration sought to bypass the FISA process of acquiring a warrant for searches.

Perhaps the NSA just didn’t have any experience submitting FISA warrants, so Bush unilaterally waived that requirement. And perhaps Bush thought FISA was a hindrance — in 2002 there was a widespread but false believe that the FISC got in the way of the investigation of Zacarias Moussaoui (the presumed “20th hijacker”) — and bypassed the court for that reason.

Most likely, Bush wanted a whole new surveillance paradigm. You can think of the FBI’s capabilities as “retail surveillance”: It eavesdrops on a particular person or phone. The NSA, on the other hand, conducts “wholesale surveillance.” It, or more exactly its computers, listens to everything. An example might be to feed the computers every voice, fax, and e-mail communication looking for the name “Ayman al-Zawahiri.” This type of surveillance is more along the lines of Project Shamrock, and not legal under FISA. As Sen. Jay Rockefeller wrote in a secret memo after being briefed on the program, it raises “profound oversight issues.”

It is also unclear whether Echelon-style eavesdropping would prevent terrorist attacks. In the months before 9/11, Echelon noticed considerable “chatter”: bits of conversation suggesting some sort of imminent attack. But because much of the planning for 9/11 occurred face-to-face, analysts were unable to learn details.

The fundamental issue here is security, but it’s not the security most people think of. James Madison famously said: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Terrorism is a serious risk to our nation, but an even greater threat is the centralization of American political power in the hands of any single branch of the government.

Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful.

After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government. Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It’s time we brought back the security system that’s protected us from government for over 200 years.

A version of this essay originally appeared in Salon.

I wrote another essay about the legal and constitutional implications of this. The Minneapolis Star Tribune will publish it either Wednesday or Thursday, and I will post it here at that time.

I didn’t talk about the political dynamics in either essay, but they’re fascinating. The White House kept this secret, but they briefed at least six people outside the administration. The current and former chief justices of the FISC knew about this. Last Sunday’s Washington Post reported that both of them had misgivings about the program, but neither did anything about it. The White House also briefed the Committee Chairs and Ranking Members of the House and Senate Intelligence Committees, and they didn’t do anything about it. (Although Sen. Rockefeller wrote a bizarre I’m-not-going-down-with-you memo to Cheney and for his files.)

Cheney was on television this weekend citing this minimal disclosure as evidence that Congress acquiesced to the program. I see it as evidence of something else: if people from both the Legislative and the Judiciary branches knowingly permitted unlawful surveillance by the Executive branch, then the current system of checks and balances isn’t working.

It’s also evidence about how secretive this administration is. None of the other FISC judges, and none of the other House or Senate Intelligence Committee members, were told about this,­ even under clearance. And if there’s one thing these people hate, it’s being kept in the dark on a matter within their jurisdiction. That’s why Senator Feinstein, a member of the Senate Intelligence Committee, was so upset yesterday. And it’s pushing Senator Specter, and some of the Republicans in these Judiciary committees, further into the civil liberties camp.

There are about a zillion links worth reading, but here are some of them you might not yet have seen. Some good newspaper commentaries. An excellent legal analysis. Three blog posts. Four more blog posts. Daniel Solove on FISA. Two legal analyses. An interesting “Democracy Now” commentary, including interesting comments on the NSA’s capabilities by James Bamford. And finally, my 2004 essay on the security of checks and balances.

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” — William Pitt, House of Commons, 11/18/1783.

Posted on December 20, 2005 at 12:45 PMView Comments

Sidebar photo of Bruce Schneier by Joe MacInnis.