As a former NSA analyst, I'm dismayed by the continuing revelations of the National Security Agency's warrantless -- and therefore illegal -- spying. The case involves fundamental issues related to NSA's missions and longstanding rules of engagement. What's even more dismaying is the lack of public reaction to this.
Fundamentally, this is an issue of law. FISA, the Foreign Intelligence Surveillance Act, was established in 1978 to address a wide variety of issues revolving around Watergate, during which a President used foreign intelligence agencies to collect data on US citizens. As part of FISA, NSA has to get warrants to analyze and maintain collections of data involving US citizens. FISA has withstood all tests until now, and it involves a fundamental aspect of the US Constitution -- its system of checks and balances.
The FISA law allows NSA to request those warrants up to 72 hours after the fact -- that is, after the data has been analyzed. And lest you think that the courts from which such warrants are requested are staffed by a bunch of liberal, activist, criminal-coddling judges, they have reportedly turned down only five warrants in the last 28 years. So when President Bush says "If Osama bin Laden is calling someone in the United States, we want to know about it," followed by his nervous laugh, he's laughing at the American Public, as "knowing about it" is a totally irrelevant issue. FISA blocks no legitimate acquisition of knowledge.
It doesn't even slow the process down. The issue is not that NSA cannot examine calls into the US from terrorist suspects -- FISA provides for that -- but that the agency must justify acting on the results and keeping the information within 72 hours. The President claims that the process of getting those warrants -- of complying with the law -- is too time-consuming. Normally that would sound like simple laziness, but the reality is that the program is so large that they would need an army of lawyers to get all the warrants they'd need to be in compliance with FISA. But the law is the law. No president has the right to pick and choose which laws they find convenient to follow.
If Bush didn't like the FISA laws, he could have asked Congress to amend them. After all, after 9/11 Congress passed a wide variety of laws (without, for the most part, reading them) that were supposed to prevent another attack. They could have easily slipped something modifying FISA into all of that legislation. They did not, though recent revelations about this administration's use of signing statements may indicate that they simply didn't want to raise the possibility of questions.
Ignoring FISA's rules concerning warrants is illegal. It also weakens national security, since the process of obtaining the warrants has an effect on quality control. To date, FBI agents have been sent out to do thousands of investigations based on this warrantless wiretapping. None of those investigations turned up a legitimate lead. I have spoken to about a dozen agents, and they all roll their eyes and indicate disgust with the man-years of wasted effort being put into physically examining NSA "leads."
This scattershot attempt at data mining drags FBI agents away from real investigations, while destroying NSA's credibility in the eyes of law enforcement and the public in general. That loss of credibility makes NSA the agency that cried 'wolf' -- and after so many false leads, should they provide something useful, the data will be looked at skeptically and perhaps given lower priority by law enforcement than it would otherwise have been given.
Worse, FBI agents working real and pressing investigations such as organized crime, child pornography, and missing persons are being pulled away from their normal law enforcement duties to follow up on NSA leads. Nobody wants another September 11th, of course, but we experience real crimes on a daily basis that, over the course of even one year, cause far greater loss of life and damage than the September 11th attacks did. There are children abused on a daily basis to facilitate online child pornography, yet I know of at least two agents who were pulled from their duties tracking down child abusers to investigate everyone who called the same pizza parlor as a person who received a call from a person who received an overseas call. There are plenty of similar examples.
We have snakes in our midst, yet we are chasing a mythical beast with completely unreliable evidence.
And now we discover that NSA is searching through every possible phone call made in the US. They claim that NSA is not receiving any personally identifying information. Frankly you have to be a complete moron to believe that. It is trivial to narrow down access to a phone number to just a few members of a household, if not in fact to exactly one person.
The government claims that it got the information legally since it was given the data or bought it from the telecom companies. Perhaps, but USA Today reports that at least one company (Qwest) received threats from the US government for not cooperating. That's extortion -- another crime.
Congress is not exercising any backbone at all, and neither is their constituents -- aka you. Every time we receive new information about the NSA domestic spying program, it gets exponentially worse, and it's clear that we still have no clue as to the full extent of the program. More importantly, the courts and Congress do not appear to have a clue as to the full extent of the program, and those bodies are constitutionally required to exercise checks and balances over the NSA. The actions taken by the executive branch after September 11th aren't protecting our freedom. They are usurping it.
So, besides knowing that it's illegal, that is provides useless information, that it takes law enforcement agents away from investigating and preventing crimes actually being committed, and that it erodes civil liberties, we have no clue how bad it really is. The arguments I hear for it are that 1) I have nothing to worry about so I don't care if they investigate me, or 2) we need to do everything we can to protect ourselves, or 3) the NSA isn't listening to the content of the calls, so there's no harm.
Addressing the first point, people who did nothing wrong have been investigated and jailed in this country and others over the years. Additionally, I believe that Saddam Hussein would cheerfully agree with the tired allegation that if you did nothing wrong, you shouldn't mind the government looking at your calls. I think Lenin, Stalin, Hitler, and the Chinese government would also agree with that line of thought. Is this the company we consent to keep in the name of "safety?"
To doing everything we can to protect ourselves, we have, again, pulled law enforcement agents away from real ongoing crimes to investigate poor and scattered "intelligence." This definition of "protection," again, leaves us watching for dragons while very real snakes multiply freely in our midst.
And so what if the NSA isn't listening to the calls themselves? An intelligence agency doesn't need to hear your chatter to invade your privacy. By simply tying numbers together -- an intelligence discipline of traffic analysis -- I assure you I can put together a portrait of your life. I'll know your friends, your hobbies, where your children go to school, if you're having an affair, whether you plan to take a trip, and even when you're awake or asleep. Give me a list of whom you're calling and I can tell most of the critical things I need to know about you.
Unnerved at the prospect of one person holding that data? You should be. While I can personally attest to the fact that the vast majority of NSA employees are good and honest people, NSA has more than its share of bitter, vindictive mid- and senior-level bureaucrats. I would not trust my personal information with these people as I have personally seen them use internal information against their enemies.
At the same time, we have seen the Bush administration personally go after Joesph Wilson, the ambassador who spoke out against the Bush administration, by leaking potentially classified information about him. They vigorously tried to undermine the credibility of Richard Clarke and others who spoke out against them. Now consider that the NSA telephone call database is not classified; there's no legal reason that they can't use this database as vindictively as they did, even when the data was potentially classified, as in releasing the information that Valerie Plame, Wilson's wife, worked for the CIA.
Over the years, I have defended NSA and its employees as reasonable and law abiding. I was all for invading Afghanistan, deployment of the Clipper Chip, and many other controversial government programs. NSA domestic spying is against everything I was ever taught working at NSA. I might be more for it if there was any credible evidence that this somehow provides useful information that couldn't otherwise be had. However, the domestic spying program has gotten so massive that the well established process of getting a warrant cannot be followed -- and quantity most certainly doesn't translate to quality. Quite the opposite.
Again, I'm not arguing against allowing the NSA or other intelligence agencies to collect information on terrorists. My problem is that they are bypassing legally required oversight mechanisms. This implies that the operations are massive, and go well beyond the scope of looking at terrorists. Not only is this diminishing what makes America unique and worth preserving, it removes all quality control and puts the country at increased risks by moving resources away from critical investigations of more substantial threats.
I think Senator Jon Kyl, a strong supporter of the NSA domestic spying program, said it best, "We have got to collect intelligence on the enemy." I fully agree. But the enemy numbers in the hundreds at best. NSA is collecting data on hundreds of millions of people who are clearly not the enemy. These numbers speak for themselves.