Data Mining: The Needle in a Haystack Problem

Let us be fair to Obama. He does appear to be committed to ending his predecessor's policies of torture and indefinite detention without hearing. He has, admittedly, been rather timid and incomplete in his approach, often more interested in covering up his predecessor's crimes than rooting them out. And even this tepid approach has engendered considerable resistence, which can only escalate in the wake of the most recent attack. But there is a clear and identifiable difference here between the Obama and Bush approaches.

By contrast, Obama has not created any daylight between himself and Bush on wiretapping (as it was finally approved by Congress). Nor is that all. The Bush Administration's approach to wiretapping attracted the most attention because of its blatant illegality, but it was only a small part of a larger whole that we still know very little about, and that the Obama Administration has embraced, apparently without modification. Consider:

The Inspector General's Report on surveillance found no evidence of intentional misuse of the warrantless surveillance program (p. 13), but warned that in its current, legal form it involves "unprecedented collection activities" that must be closely monitored (p. 38). The IG report gave only the vaguest hints what the warrantless surveillance consisted of, other than to quote NSA director Michael Hayden to the effect that saying the activities were "more aggressive" than FISA allowed, but "less intrusive" because the period of time was much shorter than authorized by a FISA warrant (p. 16). This appears to confirm reports by the Washington Post that computers were sifting "hundreds of thousands" of calls, faxes and e-mails into and out of the US. After various levels of screening, some agents were allowed to listen to some conversations -- about 5,000 people according to one source.

The Post article denied that any domestic calls had been subject to warrantless surveillance. But USA Today famously reported that the NSA was also keeping an immense database of all domestic phone calls, "the largest database ever assembled in the world," looking for suspicious patterns. The legality of this program has never been settled. The same goes for the less publicized Homeland Security program keeping score on international travelers to assess their threat risk.

There is no question about the legality of of National Security Letters, which allow the FBI to command the production of a wide variety of information without having to resort to a subpoena, let alone a warrant. FBI use of NSL's has been extensive, with some 140,000 such letters issues from 2003 to 2006, an average of nearly 50,000 a year. Approximately half of those letters did not lead to any prosecution at all, and most others were used in immigration, money laundering or fraud cases. Very few were used to prosecute actual terrorists. The total number dropped to 16,000 once such abuses were revealed, but soon began edging up again afterward. Also legal is the ever-expanding terrorism watch list, along with the much smaller No-Fly list, which nonetheless contains many dubious entries and torments even more innocent people who happen to have the same name as a tangential terror suspect.

And then there were plans that were rejected at first, only to be adopted in other form such as TIPS, which sought to recruit mail carriers, meter readers, repairmen and so forth as spies and informants. Or Total Information Awareness, that was supposed to analyze patterns in everything. These did not so much disappear as mutate. These are the Bush era policies and programs that the Obama Administration is keeping intact. All fit under the broad rubric of data mining.* All seek to vacuum up huge quantities of data and analyze it for patterns indicating terrorist activity.

Data mining has its defenders. For instance former libertarian Richard Posner argues that there is no danger to civil liberties because the initial scrutiny is done by machine, and only seen by human eyes (or ears) if the program indicates a threat to national security. The only danger could be in abuse the blackmail political rivals. Others at the time of the USA Today article argued that because of the sheer volume of data, there could be no danger to privacy.

The basic problem with looking for terrorists by data mining is there just aren't that many terrorists out there. The estimated number of Al-Qaeda operatives in Yemen is 300. Another 200 are estimated to be in Pakistan. John Ashcroft's sweeping dragnet after 9-11 netted a grand total of one (Ali Saleh al-Marri). The sleeper cells predicted at the time never appeared. (I realize, of course, that Al-Qaeda is not the only terrorist organization in the world. But it is the only one that targets us). In short, we are looking for a needle in a haystack. Data mining in such an instance poses serious problems.

Security expert Bruce Schneier explains well. When searching for a needle in a haystack, adding more "hay" does not good at all. Computers and data mining are useful only if they are looking for something relatively common compared to the database searched. For instance, out of 900 million credit card in the US, about 1% are stolen or fraudulently used every year. One in a hundred is certainly the exception rather than the rule, but it is a common enough occurrence to be worth data mining for. By contrast, the 9-11 hijackers were a 19-man needle in a 300 million person haystack, beyond the ken of even the finest super computer to seek out. Even an extremely low rate of false alarms will swamp the system.

And that does, in fact, appear to have happened. The FBI, frustrated with all the false leads generated, began referring to them as "calls to Pizza Hut." An NSA data miner acknowldged, "Frankly, we'll probably be wrong 99 percent of the time . . . but 1 percent is far better than 1 in 100 million times if you were just guessing at random."

But there are obvious problems with generating so many false leads. The first is whether it is useful at all. The Inspector General's Report was unable to quantify its usefulness to any degree, other than to say that Hayden vouched for its usefulness and said that it would have captured two of the 9-11 hijacker. But has it thwarted any actual terrorist attacks? Most thwarted attacks have begun with a specific tip. (This is worth an entire post). Another, which Schneier focuses on, is the waste of manpower investigating false leads that might be put to other use.

But besides uselessness and the time and effort wasted on false leads, there are real civil libertarian dangers as well. Bush's defenders are quick to point out that none of the data mining led to COINTELPRO style abuses. So far as I know, this is true. But there are other kinds of dangers as well. When a system regularly generates false leads and forces police to investigate them, these fruitless investigations, too, are an infringement on the liberty of people senselessly investigated and expose everyone to the risk of such pointless investigation. Investigation of false alarms differs from COINTELPRO-style abuses in being mindless rather than malicious, but it infringes on liberty nonetheless.

The other danger is that any police force tasked with looking for needles in a haystack, there will be strong institutional and bureacratic pressure to find something. If no needles are turning up, the temptation will be to find a prickly piece of hay and try to convince people that it is sort of like a needle. This can, indeed, lead to COINTELPRO sorts of abuses. In Maryland, state police investigated everyone from anti-war groups to PETA to customers protesting a 72% rate increase as possible terrorists. (The article also cites abuses by city police and the FBI, but links are not functioning).

Obviously, this is not the best time politically to call for a cutback in data mining activities. Obama is already under sufficient attack for not torturing, for using civilian trials, and for releasing GTMO detainees determined not to be terrorists. For him to move away from data mining now would lead to a wingnut feeding frenzy. But what we need is not any more information to swamp the system, but better analysis of what we already have. And no ridiculous rules against leaving your seats for the last hour of flight.

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*Actually, NSL's quite probably are not a data mining tool so much as a method to streamline data collection that it is easy to get sloppy and overuse.

In Retrospect, Were We Paranoid about Bush?

I planned this post even before the Underpants Bomber struck, but that attack makes the matter all the more timely.

In light of "death panels" talk and all the hysterical, frenzied paranoia about Obama, and in light of the recent spate of terrorist plots, one of which came uncomfortably close to fruition, and with the perspective of distance, were we paranoid about George Bush? Was our side just as guilty then as the Teabaggers are today? To what extend did we exaggerate the threat he posed to freedom? To what extent were his actions reasonable policy disputes, or necessary responses to terrorism? And to what extent is the Obama Administration the same as its predecessor?

I'll start with the obvious. There were, in fact, some paranoid Bush haters. The Truthers were the most extreme example, followed by people who thought he wanted to cancel the 2008 election and proclaim himself President for Life. Also on the list of obviously paranoid were people who were sure Diebold voting machines were rigged to make a Democratic victory impossible, people who thought he would start detaining political opponents, and people who thought opponents would be shipped off to GTMO.

But there were other, more reasonable fears that people had, some confirmed, some refuted, and some still uncertain. One fear I confess to having that was proven false was the fear that he would treat a Republican victory in the 2008 election as a matter of national security and resort to Nixonian dirty tricks. Didn't happen. Another was the fear that he would pardon everyone in his Administration before leaving office. That didn't happen either, probably because he had assurances from Obama that there would be no prosecutions. (Could such assurances have something to do with why he did not resort to dirty tricks in the election? Or am I just being paranoid again?)

I divide the concerns of Bush opponents into several categories, and analyze them, as opponents saw them at the time, in hindsight, and in comparison with the Obama Administration.

Fear mongering and warmongering. It's really hard to know to what extent the Bush Administration saw itself as doing what was necessary for the protection of the American people, and to what extent it merely exploited fears for partisan advantage. Certainly scheduling a vote on the invasion of Iraq for right before the 2002 Congressional election -- and demonizing Democrats for any hesitation sounds a lot like exploiting fears for partisan advantage. Tom Ridge has more or less admitted that the Administration manipulated alert levels for partisan advantage. And I see no reason to doubt either that the Administration manipulated intelligence to justify the Iraq War, or that it scheduled the vote before elections as a means of political pressure. And not only Bush, but Republicans in general have been using fear of terrorism (and fear in general) as their favorite technique to win elections and continue to do so to this day. Obama, by contrast, does not fear monger, but he does a lot manipulating behind the scenes to get his way. [Hope to find link later]. Pick your poison.

Treating the federal government as a patronage organization. This is one of those areas where we have a lot of suspicions, but no proof. There is some evidence when going into the 2006, running scared and facing major losses, the Bush Administration used, or attempted to use, a variety of federal agencies as patronage organizations to advance Republican prospects. There is also evidence that US Attorney David Iglesias was fired for declining to use his office to advance Republican electoral fortunes. However, the reasons for the other US Attorney firings remains unclear, as does the extent to which the federal government in general, and the Justice Department in particular, was corrupted to serve as a patronage organization. File this under undetermined. As for the Obama Administration, I do not know if they want to stoop to such measures. But given Republicans' intense opposition and eagerness to jump on them for any misstep, it seems safe to assume that it would not be able to get away with it. Partisan divisiveness has its advantages.

Indefinite detention, extraordinary rendition, and torture. Bush critics were absolutely right to condemn these. We may, however, have made a mistake in how we attacked them. Criticizing this as a civil rights or constitutional issue allowed the retort that civil rights and constitutional rights do not apply to non-citizens outside the United States. Legally, this is accurate. Treating this as a matter of civil rights and constitutional liberty also creates the impression that US citizens tremble in fear of GTMO and torture, which Bush supporters could indignantly (and correctly) deny. Quite correctly, they could point out that the right of ordinary Americans to due process of law was not in danger, that Bush never committed any civil liberties violations comparable to, say, Woodrow Wilson's Palmer Raids in WWI, the internment of Japanese Americans in WWII, or COINTELPRO during the Cold War. All of this was true, and to the extent Bush opponents claimed otherwise, they could fairly be accused of paranoia.*

But these policies, nonetheless, fully deserved our condemnation, even though they posed no domestic danger. The proper criticism was not that these violated civil or constitutional rights, but that they violated universal human rights. It was pure paranoia to suggest that US citizens were in danger of losing their freedom to such methods, or to fear monger about them. But it was entirely appropriate to point out that the Bush Administration's use of torture (and torture-lite), its lack of regard for innocence or guilt, and its absurdly rigged procedures for determining detention were, indeed, the stuff of dictators, and to be angry about it. There is an old jibe that a liberal is someone whose immediate interests are not at stake. Let's turn that insult into a boast that a liberal is someone whose immediate interests are not at stake who cares anyhow.

These are policies the Obama Administrations appears fully committed to ending. It also appears fully committed to covering up the crimes of its predecessor. This is certainly unfortunate, as learning more about the crimes of the Bush Administration, particularly against innocent people, might finally convince many people that they were actual crimes. But given the degree of Republican obstructionism, the hysteria they are whipping up, and the lack of political upside to protecting Scary Brown People, I thing he does deserve some credit here.

Executive powers. One of the most alarming things about the Bush Administration was its insistence, in effect, that the President was exempt from all laws, so long as he said "national security" first. Whenever Bush considered any law unduly restrictive of his power, he simply said, "national security" and broke it. Congress, confronted with his actions, invariably retrospectively legalized them. Once he got what he wanted, Bush backed off of his more extreme claims to be exempt from laws. Unsurprisingly, Obama, having been given so much power by Congress, shows no inclination to give it back.

Some people, like "Anonymous Liberal" argue that this is a significant improvement over Bush-era lawlessness. As s/he puts it, "What was once illegal is now legal. So what we're now debating are proposals to change or amend existing law to make it better. We're working within the democratic framework to try to effect policy change, which is how things are supposed to work. Three years ago we were debating whether the law even had to be followed." I find this argument unconvincing. What the Bush Administration has proven is that if the President breaks the law, Congress, instead of reigning him in, will change the law to validate his actions. A more dangerous or subversive position is hard to imagine.

Data mining. Although the Bush detention and torture policies are better described as human rights than civil rights issues, many of his policies raised legitimate civil rights concerns. These included his warrantless surveillance, national security letters, searches for patterns in phone calls and e-mails, tip hotlines, terrorism watch list, no-fly list, Total Information Awareness, and so forth. Though they diverge in detail, all of these policies fit under the broad rubric of data mining. It is these policies that the Obama Administration gives every sign of intending to keep in unmodified form.
Because these are the Bush era policies that pose the greatest civil liberties (as opposed to human rights) concern, because they are the ones that Obama appears to have adopted lock, stock and barrel, because so little is known about them so far, and because they are the policies most likely to be stepped up in the wake of the latest terrorist attack, these policies deserve a post of their own. Coming up.
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*There do, however, appear to have been some CONINTEPRO-like activities on the state level, at least in Maryland.

Politics Eclipse Policy, Part II

So, having criticized the MSM for focusing on politics over policy in the current health care debate, why have I written only on the politics and not made a single post on substantive healthcare policy? For two reasons. First of all, I consider Republican conduct here to be sufficiently disturbing that for me the politics of the issue really do eclipse the policy.

The second reason is that ultimately, healthcare reform is not my biggest issue. I didn't vote for Obama to pass universal healthcare. Yes, it is an important issue, and one that I favor. But it wasn't the reason for my vote.

I voted for Obama in hopes that he would clean up the mess Bush left. He hasn't done it. Given the choice between Bush with universal healthcare and Bush without universal healthcare, I will take the healthcare. But I was hoping for a President who wasn't George Bush and am now despairing of getting one.

Consider the Bush policies I saw as important and how Obama has responded so far.

Get out of Iraq. Check. Granted, he is following the timetable negotiated by Bush, but he is following in, not trying to subvert it as some hawks have desired.

Develop a rational policy in Afghanistan. None in sight.

Stop relying on defense contractors. We are, if anything, relying on them more than ever.

Practice diplomacy. Okay, we are making at least some progress there.

Close Guantanamo. A stated goal with approximately zero chance of happening. Granted, Congress has a large hand in that.

End torture. Well, the Obama Administration has formally committed itself not to torture and has closed down CIA "black sites" that weren't being used anyhow. But torture continued unabated at Guantanamo with no attempt to stop it, and who knows what is going on at Bangram.

End warrantles wiretaps. The Obama Administration seems quite content continuing the mysterious "basket warrants" allowed under the Protect America Act and sweeping the entire issue under the rug. Is the program appropriate? Is it entirely out of control? Just how much of our foreign communications are being surveilled? Who knows?

Stop the abusive use of National Security Letters. Who knows? I'm guessing not; they are just too convenient.

Stop infiltrating and surveilling innocent organizations. Who knows?

Stop heavy-handed PATRIOT Act investigations of innocent dissent. Who knows?

Put the No-Fly List on a rational basis. Not a sign of it.

Either abolish our color-coded system of alerts, or put them on a rational basis. No. In fact, orange appears to be the new norm.

Stop using the federal government (including the Justice Department) as a system of partisan patronage. Who knows?

Stop interfering with the independent judgment of government scientists. Who knows?

Stop the heavy-handed immigration raids that give the country a police state feel. It is my understanding there has been progress here, and the emphasis has shifted to deporting criminals and cracking down on employers.

Stop heavy-handed treatment of foreign tourists for small technical violations. Who knows?

Lighten up on the war on drugs. Once again, it is my understanding the feds have stopped raiding medical marijuana facilities. Otherwise things remain heavy-handed, but at least be are back to pre-Bush.

Allow unfriendly demonstrators in your vicinity and critics into town hall meetings. Yes, give Obama credit, he has done this. In fact, he was disappointed how few showed up on the health care tour.

Introduce accountability into the bank bailout and stop treating it as a handout. For the most part, no. As funds began to run low and everyone knew Congress would not approve any more, the Administration had started being more parsimonious, which is all to the good, but even the Bush Administration would presumably have done the same. Maybe Obama will offer a reasonable set of banking regulations and somewhat redeem himself on this one, but I am not holding my breath.

Run a more open Administration. Despite a few encouraging signs, the overall record is most unimpressive.

Expose what the Bush Administration was up to. This was the critical one for me. Only by revealing what they were up to can we really get a handle on what (if anything) was justified and how to reform it. Unlike, say, Glenn Greenwald, I can understand why prosecution is politically impossible, but exposure it essential. And, while there have been a few forced disclosures so far, on the whole this Administration has been fighting tooth and claw to keep its predecessor's actions secret. What are we to conclude but that it wants to reserve authority to continue them?

Belated Opinion on the Inspector General's Report -- Despair

At last I have gotten to a rather belated review of the Inspector General's Report on warrantless surveillance under the Bush Administration. Although the existence of the Report seemed a small ray of hope, the contents move me distinctly in the direction of despair.

The most obvious point is that the Report does not explain what the program in question was (that remains classified), but it does make clear that the publicly acknowledged "Terrorist Surveillance Program" (TSP) was only a small part of what was going on. It identifies the total illegal wiretapping as the President's Surveillance Program (PSP), of which the TSP was only a part. Information was collected by the NSA and distributed to various other agencies, mostly to people who were unaware of the source of the leads they were given. An internal NSA audit of the surveillance found no evidence of intentional misuse. (p. 13).

Surveillance activities were intensely secret. John Yoo was the only member of the Office of Legal Counsel (OLC) to be aware of the program. His memo approving warrantless surveillance, in addition to be very dubious in its interpretation of the laws, factually misrepresented what was going on, arguing for the legality of the activities that constituted the TSP and largely ignoring the other illegal wiretaps. Attorney General John Ashcroft approved the program based on Yoo's memo, not realizing that it misrepresented the full scope of warrantless surveillance. The top four members of Congress and later the Gang of Eight were briefed on the program, as was the presiding judge of the FISA court. The report strongly hints that material obtained through warrantless surveillance was sometimes used to apply for FISA warrants. (p. 18).

The 2004 Justice Department revolt began after John Yoo left and his replacement began to realize what was being approved. John Ashcroft became alarmed when he realized what he had been authorizing. James Comey and Jack Goldsmith joined in the revolt. Their objections appear not to have been rooted in the activities themselves, which they might have approved of, but in the absence of legal authority for them. In other words, they appear to have believed that the law as it stood was unreasonable restrictive, but must still be obeyed. White House officials then met with the Congressional Gang of Eight to discuss the situation, with no Justice Department officials present. Alberto Gonzales claimed the Eight agreed the surveillance must continue. The Democrats in the group denied it. (p. 23).

President Bush, who up till then had been authorizing warrantless surveillance every 45 days based on Yoo's rather vague assurances, became more explicit when the Justice Department refused to cooperate. He signed an authorization stating that, as Commander-in-Chief, he had the authority to authorize such wiretapping despite the Justice Departments disapproval and despite any statute to the contrary. He also expressly claimed authority to do all the things that the Yoo memo had discreetly concealed. It was at this point that Justice Department officials began threatening mass resignations. The parties eventually reached an accommodation in which the President modified or discontinued some of the more offensive actions, and the OLC justified the remaining ones under the Authorization to Use Military Force (AUFM). The illegal warrantless wiretaps were apparently discontinued when they were legalized under the modified version of FISA in 2007.

I suppose we can take at least some comfort in knowing that the warrantless surveillance, although illegal, was at least directed toward legitimate security concerns and not deliberately misused. Still, the report leaves a great many obvious and disturbing questions unanswered.

What was the President's Surveillance Program? The Report does not discuss this, since it is classified. It does drop a few hints, though. The officially acknowledged "Terrorist Surveillance Program" involved "the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qa'ida or related terrorist organizations." (p. 1) By contrast, according to NSA Director Michael Hayden, unacknowledged activities "were targeted and focused with the purpose of 'hot pursuit' of communications entering or leaving the United States involving individuals believed to be associated with al-Qa'ida." (p. 15). What's the difference? The report offers one tiny clue, quoting Hayden as saying the activities were "more aggressive" than FISA allowed, but "less intrusive" because the period of time was much shorter than authorized by a FISA warrant. This may be a confirmation of reports that in fact the NSA cast a broad net over international calls, filtering for suspicious sounding conversations, first by computer and later by human listeners.

How useful was the program? The Inspector General cannot even guess. Director Hayden vouched that it was extremely useful, and that if it had been in place before 9-11, it would have caught two of the hijackers. (p. 31). Hayden, as director of the NSA is perhaps in the best position to know, but also has the strongest interest in defending the program. Other intelligence agencies found the program to be useful, but only one tool among many, and were unable to quantify its value. The above report alleges that about 5,000 international calls were listened into without a warrant, yielding probable cause to apply for a warrant in about 10 cases a year.

What did Congressional leaders (and the presiding FISA judge) know and when did they know it? Talking to Congressional leaders (and FISA judges) was outside the Inspector General's mandate. Hayden boasted that he briefed Congressional leaders on surveillance 49 times, including 17 times before the program was exposed in the press, and that no one objected. (p. 16). Alberto Gonzales reported that during the Justice Department revolt, the Gang of Eight insisted that program must go on, a claim that Democrats in the group dispute. But how candid was the Administration with leaders of Congress (or FISC)? The Report establishes that John Yoo was the only member of the OLC aware of the program, that his memo factually misrepresented it, and that John Ashcroft, Bush's own Attorney General relied on this inaccurate memo and did not know until 2004 what he was authorizing. So, was an Administration that deceived is own Attorney General about what it was up to completely candid with leaders of Congress (and the presiding FISA judge)? Let's just say it's possible. I can't disprove it. But it seems unlikely.*

How far was the program scaled back after the 2004 revolt? This, too, is unclear. The Report says only that the President agreed to "modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported." (p. 29). It does not say whether the activities that continued were limited to the publicly acknowledged Terrorist Surveillance Program, or were more extensive. Either way, the continued activitied continued to violate FISA.

How many once-illegal activities are now authorized by the broadening of FISA in 2007? Once again, this is unclear, although the report does say that illegal surveillance ceased after the law was broadened.

Certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the Foreign Intelligence
Surveillance Court (FISC). The activities transitioned in this manner included the international communications that the President publicly described as the "Terrorist Surveillance Program." . . . [The Protect America Act] gave even broader authority to intercept international communications than did the provisions of the Presidential Authorizations governing the activities that the President acknowledged in December 2005 as the Terrorist Surveillance Program.

pp. 30-31, emphasis added. Although this is extremely vague, it seems to suggest that the publicly acknowledged Terrorist Surveillance Program was merely one part of the activities first authorized by FISC and later by Congress. Just as illegal activities in addition to the TSP appear to have continued after the 2004 revolt, such activities appear to have been legalized in 2007. Not clear is whether whatever sparked the 2004 is also now legal.

Conclusion: The Report ends by concluding intelligence collection under the "PSP" and now under FISA "following the PSP's transition to that authority" involved "unprecedented collection activities," and that the retention and use of such activities should be carefully monitored. (p. 38). This conclusion makes clear what was not made clear before -- that what has now been legalized is not limited to the rather modest activities publicly acknowledged as the TSP, but involved an gathering an "unprecedented" and dangerous amount of data that must be "carefully monitored."

To this I would add my own conclusion. Congress should never simply have allowed the Administration to set its own law. Instead, the Intelligence Committee should have conducted a thorough (and, if necessary, secret) investigation to determine what was being gathered, how useful it was, and to what extent it could be gathered from other sources. The main complaint was not that FISA warrants were too difficult to obtain, but that they were too slow and "cumbersome" and a more "agile" approach was needed. The possibility of streamlining the FISA process or allowing more days before a warrant was required should have been considered. And if the program was truly necessary but gathered a dangerous amount of information, appropriate safeguards should have been enacted. And here here we are now, stuck with whatever dangerous and originally illegal surveillance program the Bush Administration saw fit do, and no political will or interest in changing it.

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*And was a program so illegal that the upper echelon of the Bush Department of Justice, men like Ashcroft, Comey and Goldsmith -- no civil libertarians they -- nonetheless unanimously supported by both parties in the Congressional leadership? That actually seems more likely than I care to admit.

A Small, Green Shoot of Hope?

So, in the overall hope-and-despair cycle, the latest round goes to hope. For quite some time I have been concerned that the only Bush-era policies Obama will even try to modify (let alone reveal) will be torture, and that he will quietly continue whatever warrantless surveillance was in place. It now appears that the warrantless wiretapping will not be forgotten quite so easily.

As required by the Democrats' general capitulation on warantless surveillance, the Inspector General has issued a report on such surveillance that reveals (unsurprisingly) that the portions acknowledged by the Bush Administration were merely the tip of the iceberg and that something much larger was going on. What that "something" was remains a closely guarded secret, but perhaps that knowlege that improper surveillance was happening will spur Congress to look into what it was. I have downloaded the report and intend to read it and give a (belated) opinion on it at some time in the future. (And I have already read the Torture Memos and not commented yet).

As a preliminary matter, I will make a few comments. First, it is disturbing that Congress was not able to unearth any of this information on its own, but had to rely on an executive investigation. This is yet another disturbing example of the overwhelming executive domination of our government these days -- and the spinelessness of Congress unless the executive leads the way. As a small measure of comfort, this executive investigation was at least done on the command of Congress.

One Final Riff on Obama (Before He is Sworn In)

Finally, let me make one last, unfair criticism of Obama before he has the opportunity to act. It is gratifying to hear that he intends to shut down GTMO, try or release the detainees, and launch an investigation of indefinite detention, torture, and "extraordinary rendition." But there is one more Bush Administration policy he has been notably silent on, the only one he voted in favor of, but one that led to practices so illegal the entire top echelon of the Justice Department was ready to resign. I refer, of course, to warrantless surveillance. Does Obama intend to investigate that as well?

The Latest FISA Ruling: What Does It Mean

(NOTE: I plan for my next few entries to be reviews of original documents from the perspective of an Enlightened Layperson. I will be starting with the most recent and moving backward to less recent ones, which should make this entry current and some later ones hopelessly behind the times).

The latest episode in the saga of George Bush's warrantless surveillance has been a ruling by the trial judge in the case of Al-Haramain Islamic Foundation v. Bush. The decision is complex and requires a little background to understand.

Numerous individuals have tried to sue the Bush Administration for wiretapping them without a warrant in violation of FISA. In all cases but this one, the Administration has been able to have the suit dismissed on the grounds that the plaintiffs could not prove that they were surveilled. In the Al-Haramain case, however, Justice Department lawyers inadvertently gave the Al-Haramain Islamic Foundation (a Muslim charity suspected of being a terrorist front organization) a document proving such surveillance. Al-Haramain sued and, unlike the other parties, presented proof. The government demanded the document and all evidence of the document be excluded as a state secret and the case dismissed for lack of proof. The original trial judge ruled that Al-Haramain must give up the document, but could quote the document from memory to establish standing. The Court of Appeals overruled that decision and held that the document and any memory of the document were inadmissible under the common law (judge-created) state secrets rule, but might be admissible under FISA rules for dealing with classified documents. The case was returned to the District Court (this time Judge Vaughn Walker) to address that issue.

So what did Walker rule? His decision does not address the core issue of whether FISA unconstitutionally infringes on the President's power (a subject the Administration has gone out of its way to keep any court from ruling on). Rather, it tinkers around the edges of arcane and technical FISA subjects and is ambiguous enough that both supporters and opponents of the Bush Administration's warrantless surveillance can spin it as a victory. The following are its main findings:

FISA is the exclusive means for the President to engage in foreign intelligence surveillance within the US. FISA was enacted in response to serious executive abuses of power and to allow such surveillance outside FISA would defeat the entire purpose of the Act. Although the judge addresses exclusivity mostly in the context of the state secrets privilege it is this ruling Bush opponents regard as a victory.

FISA procedures for dealing with state secrets preempt the common law state secrets privilege. The state secrets privilege is a privilege created by judges in the absence of a statute. Under the state secrets privilege, if the government claims that information is privileged, the judge must somehow decide whether the claim is appropriate, but without disclosing the nature of the privileged information. It may be appropriate for the judge to review the document in camera (privately), but sometimes even private review reveals too much and the judge must determine whether documents are privileged without seeing them! FISA provides that if the government claims a privilege for wiretap documents, the judge "shall" (must) review them in camera and make a determination. Judge Walker held that this specific FISA statutory provision overrides the general common law state secrets privilege.

Article II of the Constitution does not give the President exclusive authority over the state secrets privilege. The Bush Administration, of course, has a longstanding habit of claiming absolute power in all matters of national security beyond the authority of the other branches to question. Although the government managed to avoid giving the judge the opportunity to rule on whether the President has such power in matters of foreign intelligence, it did claim complete power over the state secrets privilege. The judge rejected this argument, pointing out the Congress has passed many laws, and not just FISA, that regulate the executive handling of classified materials. This, too, is a clear smackdown to the Bush Administration and its theories of executive power.

FISA intentionally makes it nearly impossible to know if one has been improperly surveilled. The statute for criminal warrants requires that targets be notified after the surveillance ceases. Such notification is routine, and there have been many lawsuits for improper suveillance. FISA also has a notice requirement but (understandably in matters of national security) there are so many exceptions as to make the requirement almost meaningless. Notification is extremely rare and usually occurs only when the government brings criminal charges. To date, no one has brought suit under FISA's civil provisions, let along won.

FISA procedures for review of classified documents do not begin until plaintiffs have established their standing to sue. This means that Al-Haramain must initiate suit without relying on any classified documents. Only once it has gotten its foot in the door without such documents may the court begin review of the classified document. This is what Bush supporters can claim as victory. The judge found that the plaintiffs were relying on classified evidence to make their initial claim and dismissed their case. He gave them 30 days to refile, this time relying on non-classified evidence.

The Plaintiffs' options, then, are to re-file or to appeal (or some combination of the two). Stay tuned for the next thrilling episode.

Why Did Democrats Yield on Telecom Immunity?

I worked to help the Democrats take control of Congress in 2006 with no illusions that they would pass any legislation to reign in George Bush. Such a things would clearly be impossible unless they had a veto-proof majority. I did hope, however, that they would at least block any further laws upholding executive abominations and expose the ones that had already taken place. My advice (and expectation) was that the Democrats should start with easy things like defense contractor abuse and corruption, then move into more controversial fields like warrantless wiretapping and manipulation of intelligence at the beginning of the Iraq War, and save the rights of detainees (i.e., torture and indefinite surveillance) for last.

I based this set of priorities on two things. First, public opinion seemed to be easier to mobilize over wiretapping (which could threaten the privacy of citizens) than over GTMO (which involved only non-citizens). Second, prior to the 2006 elections the Democrats actually had blocked a law authorizing warrantless surveillance, while acquiescing to a law effectively legalizing torture.

Well, my expectation/recommendation appears to have been wrong.

Congress has actually done quite well in exposing the use of torture and the high-level approval of such techniques. But they have failed to conduct any meaningful investigation of warrantless wiretapping, and have now caved and given the Bush Administration not only all the wiretap powers it wants, but retroactive immunity for telecoms to insure that Administration misdeeds are never revealed. The obvious question is, why.

To review, in August, 2007, Congress, led by Democrats, passed a bill granting vastly expanded powers of warrantless surveillance, but imposing a six-month sunset provision and not including telecom immunity. George Bush thanked them, but said he also wanted legislation making these powers permanent and granting retroactive immunity to telecoms. In February, 2008, with the increased powers set to expire, Bush made clear that he would veto any extension that did not include retroactive immunity. Congressional Democrats defied him and allowed the increased surveillance powers to expire. National security was not endangered, they explained, because all warrants granted under the expanded regime would remain in force for a year.

So why are the Democrats caving now, after making such a show of defiance earlier? Several explanations have been offered.

Congress is concerned about national security. While there was no emergency in February, in August expanded warrants will start expiring and place the country in danger, so legislation has to be in place before August. The trouble with this theory is that it does not explain telecom immunity. If national security truly requires expanded powers of surveillance, Congress could always pass an extension of the expanded powers into the next Administration, but without retroactive immunity. Then George Bush would be the one endangering the country if he vetoed such a law.

Democrats are afraid of being labeled as soft on terrorism. This explanation does not make a great deal of sense. All evidence is that the Democrats will have a landslide victory in Congress with the next election regardless of what they do. Nor does there appear to be a great groundswell of public opinion in favor of telecom immunity. Indeed, Democrat Bill Foster won the seat of former House Majority Leader Dennis Hastert while openly opposing such immunity, despite his Republican opponent's attempts to paint him as soft on terrorist. (Foster went on to vote against the current bill).

Conservative "Blue Dog" Democrats revolted, demanding telecom immunity, and the leadership went along to preserve party unity. This explanation would make a good deal more sense if it were not so obvious that the Democratic leadership favored telecom immunity from the start. It looks like an excuse.

Democrats expect to win Presidency in 2008 and are therefore promoting executive power. This may be so, but it does not explain why the Democratic leadership would be so eager to pass a bill saving the Republican President considerable embarrassment for past actions.

The Democratic leadership is eager to hush up what happened for fear their own complicity will be revealed. This is my own opinion. The most obvious objection is that the Democratic leadership was equally complicit in torture, yet Congressional hearings are revealing more and more about torture. The difference (I believe) is that a growing body of evidence about torture is being revealed regardless of what Congress does. The Supreme Court, human rights advocates, McClatchy News and others have revealed too many embarrassing details to be concealed. The best Congress can hope to do since torture is being exposed anyway is to jump on the bandwagon. The details of warrantless surveillance remain a mystery that the Democratic leadership in Congress would like to keep buried.

And then there is the question of why Obama went along. Obama now is in much the same position McCain has been in for most of the election, and John Kerry was in during the 2004 election. Caught between the base and independent voters, Obama, like McCain and Kerry before him, is trying to avoid doing anything that could be controversial. This means not taking a firm stand on anything and preferably not having any coherent position on any controversial issue. In short, the key to being elected our leader is to avoid exercising any leadership during the election campaign!

Steps Four through Six

A continuation of the Ten Steps Naomi Wolf lists in The End of America:

Step 4, Surveil ordinary citizens. Wolf offers some interesting comparisons here. She talks about surveillance (electronic and by informants) in East Germany, China, Fascist Italy, Nazi Germany, Czechoslovakia and the FBI's COINTELPRO. This chapter more than any other gives some insight into what every day life feels like under a dictatorship. People assume they are being watched at all times. A German citizen recalled, "You never knew who it might be when the doorbell rang. [W]e children were not allowed to couth the curtains . . . There was always somebody with a leather trench coat standing there in the hallway. And, especially when there were two or three people at our place, there would be several people standing outside in front of our house." Understandably, people were intimidated under these conditions and feared to speak their minds. There is ultimately a practical limit to how many people even the most totalitarian government can watch and how much information it can process. Wolf reports, for instance, that in Nazi Germany only 3% to 25% of the population were actually spied on and in East Germany only "a minority." But when no one knows who is or is not being watched, the fear of surveillance can be as intimidating as the reality.

Unfortunately, it is not possible to make realistic comparisons witht the Bush Administration because we do not know what they have actually been doing. We do know that they have analyzed the patterns (though not contents) of domestic phone calls, looking for patterns. We know that they unsuccessfully attempted to recruit mailmen, meter readers, repair men and the like to serve as informants. (This would have amounted to one American out of 24, Wolf reports, a higher ratio of informants than in East Germany). We also have some evidence that the Administration has subjected a wide range of international phone calls to computer surveillance for suspicious words, leading to a great many meritless investigations.

But so far we have no direct evidence that they have been listening in on Americans for political views, as COINTELPRO did. Wolf believes this has happened, but she has no proof. She also speculates that the newspaper stories revealing the spy programs were secretly encouraged by the Administration to intimidate Americans from speaking freely. She may be right. But so far this is only speculation.

Step 5, Infiltrate citizen's groups. Really, this is a sub-category of surveillance. Unlike wiretaps, which remain speculative, there is good evidence the Bush Administration, and local police as well, are infiltrating citizen's groups that pose no danger of violence. Wolf documents instances of infiltration of peaceful anti-war groups by local police and the defense department. She also offers suspicious-sounding incidents of harrassment. (A church had its tax exampt status questioned for opposing Bush, although pro-Bush churches are allowed to operate freely; people are arrested for wearing anti-war T-shirts in the Capitol; people get calls from the FBI for offhand remarks). I think there can be little doubt that the Bush Administration has been using this technique. Unfortunately, unlike wiretaps or physical searches, infiltration and the use of informants does not require a warrant and is therefore much harder to regulate. Doubtless we need better regulation of the practice.

Step 6, Arbitrarily detain and release citizens. US citizens are not being threatened with GTMO or other secret prisons. Wolf argues, however, that these are only the tip of the iceberg, that political dissent does carry the threat of arbitrary short-term arrest and release. She further argues that this pattern holds for other dictatorships; in Nazi Germany, fully 36% of the population were arrested, questioned and released! (Alas, Wolf does not make any systematic comparisons, either of numbers of people detained and released in different dictatorships, or of numbers of people detained and released versus people "disappeared" into secret prisons).

The main example Wolf offers of such arbitrary detentions and releases is airplane no-fly lists and watch lists. The list is absurdly long beyond any reasonable needs -- 45,000 people on the no-fly list and 75,000 people on the watch list. Wolf believes that this is not mere bureaucratic ineptitude, but a systematic attempt to intimidate. As evidence, she gives many cases of people who actively opposed government policies being on this list and at least one instance of a passenger being told he was excluded for publicly speaking out against Bush. So it is possible the list is being used as a tool of intimidation. But there is alsoample evidence of bureaucratic ineptitude. Conservative columnist and Bush supporter Cal Thomas is also on the list. Wolf mentions the singer Cat Stevens being on this list, presumably because of his conversion to Islam and opposition to government policies. She does not mention that Republican Senator Ted Stevens' wife, Catherine Stevens had to explain that she was not the Cat Stevens on the list.

More serious are actual charges brought against lawyers defending GTMO detainees and the case of Brandon Mayfield, falsely suspected in the Madrid train bombing. And, as mentioned
before, the rules become a good deal less exacting where non-citizens are involved.

More Wiretap Statistics

The secrecy (necessary) of the FISA and warrant process makes it very difficult for an average citizen to assess the Bush Administration's claims. But one thing that helps at least assess the claim that the sheer volume is overwhelming is some sense of the scale involved. In a recent post I cited a link that gave at least some information:

(1) The very gold standard of a terrorist call was one from Bin Laden's own satellite phone, until he stopped using it in 1998. During the preceeding two years, he made 1,100 calls. The recipients of 100 of those calls remain unknown.

(2) Of the 1,000 calls traced, over 200 were to Britain, but only 27 phone numbers were involved.

(3) Six (6) of those calls were to the United States.

(4) Bin Laden's phone was only the tip of the iceberg. There were numerous other Al-Qaeda communications locations, especially a hub in Yemen (since shut down).

The total phone numbers captured from Al-Qaeda documents, laptops and cell phone in the Afghan War presumably dwarfs the number called by Bin Laden. But it need not be so overwhelming, since a single number can receive multiple calls. Projecting from Bin Laden's calls, I postulated that if six Al-Qaeda contacts out of 1,000 are with the US, it would take 10,000 phone numbers to amount to 60 in the US and 100,000 numbers to reach 600 US numbers. How many warrant applications can the FISA Court handle?

An article from the Los Angeles Times (H/T Talking Points Memo) offers some statistics about FISA warrants versus prosecutions since 1998:

1998: 796 warrants; 69 prosecutions (ratio 11.5 to 1)
1999: 880 warrants; 99 prosecutions (ratio 8.8 to 1)
2000: 1,012 warrants; 75 prosecutions (ratio 13.5 to 1)
2001: 934 warrants; 115 prosecutions (ratio 8 to 1)
2002: 1,228 warrants; 1,208 prosecutions (ratio nearly 1 to 1)
2003: 1,724 warrants; 899 prosecutions (ratio 2 to 1)
2004: 1,754 warrants; 762 prosecutions (ratio 2.3 to 1)
2005: 2,072 warrants; 771 prosecutions (ratio 2.7 to 1)
2006: 2,176 warrants; 624 prosecutions (ratio 3.5 to 1)
2007: 2,370 warrants; 505 prosecutions (ratio 4.7 to 1)

We do not know the origin of all these new warrants, but the number nearly tripled since 1998. Presumably at least some are the result of information captioned from Al-Qaeda in during the war. Indeed, the total increase is considerably larger that the 600 numbers I have speculated as the maximum number of US numbers we could have expected to capture overseas, but FISA appears to have handled them.

At least as spectacular as the rise in number of warrants is the relative increase in number of prosecutions. The article focuses on the rising number of warrants, even as prosecutions have been falling. The author wonders if this means that many of these wiretaps lack merit. Any answer would be speculative, but let us consider. The totals are not limited to Al-Qaeda, but include all national security warrants and prosecutions. At least some presumably are long-term wiretaps of foreign embassies, consulates and diplomats that can never result in prosecution because of diplomatic immunity. And some no doubt involve spies for foreign governments or non-Islamic terrorists, again, probably not much changed since before 9/11. But it seems safe to assume that the increase in warrants and prosecutions mostly involve Islamic terrorism.

Government officials quoted in the article defend wiretaps that do not result in prosecutions. They point out that there are always at least some false leads, and that sometimes when evidence is not sufficient for prosecution, terrorist plots can be thwarted by other means, such as "military or diplomatic pressure," deportation or simply letting potential conspirators know they are being watched. And, although the article does not mention it, terrorist plots, after all, are usually conspiracies with multiple members. Investigating a conspiracy may involve numerous wiretaps but yield only one prosecution of multiple defendants. In short, there is not sufficient evidence, and the FISA Court is not at liberty to release sufficient evidence, to evaluate how many of the wiretaps do or do not have merit.

But the article misses a much more obvious point. To this day, there are far more prosecutions relative to wiretaps than before 9/11. In all of the years listed before the September 11 attacks (including 2001, the year of the attacks), there were at least eight wiretaps to one prosecution. That number fell to almost as many prosecutions as wiretaps in 2002. The ratio has been moving closer to pre-9/11 norms since, but still has not reached them.

Unlike FISA warrants, national security prosecutions are matters of public record. How many of them have been for Islamic terrorism and how many for other offenses? How many prosecutions were of a single defendant and how many for multiple. How immediate was the threat? (The article lists an example of a sailor convicted of passing classified information to a pro-terrorist website. That sounds legitimate, but not an urgent danger. Prosecutions of alleged conspiracies to commit actual terrorist acts have been notoriously dubious. Any many terrorism prosecutions are for fundraising). And what have the dispositions been of these cases? Without this further information, it is not possible to answer more obvious question raised by the article's statistics -- is the government regularly prosecuting terrorism cases that lack merit?

Real-World Insights into Terrorism and Wiretapping

When it was first reported that the Bush Administration was engaging in warrantless surveillance, the President offered two seemingly contradictory defenses. He claimed at once that the warrantless surveillance involved only a few US citizens, "people with known links to al Qaeda and related terrorist organizations," and only numbers actually captured from Al-Qaeda documents, laptops and cell phones. But at the same time, he also said that there were so many numbers to wiretap that FISA could not accommodate all of the requests. Another argument some supporters made was that a number's presence in Al-Qaeda's database did not constitute probable cause; it might just be the number to a felafel stand.

As a mere Enlightened Layperson with no inside knowledge, I cannot possibly know the scale of numbers captured from Al-Qaeda, or what the FISA court considers probable cause. But a few educated guesses seem reasonable. First of all, only numbers inside the US would need a warrant to wiretap. Second, telephone numbers have international codes, so it should be easy to determine which captured numbers are or are not in the United States. Third, out of all telephone numbers captured from Al-Qaeda, persumably only a small percentage are US numbers. Finally, although Al-Qaeda operatives may, indeed, keep the numbers of their favorite felafel stands, it seems unlikely that a laptop captured from a terrorist in Afghanistan or Pakistan would have numbers of US felafel stands. (A terrorist arrested in the US might have such numbers, of course).

But I can now offer more than just educated guesses. Glenn Greenwald offered this link, which provides most revealing information of our pre-9/11 intelligence on Al-Qaeda, including that is highly suggestive about the scale.

The NSA apparently traced Osama Bin Laden's phone, broke his codes, and monitored his calls since the early 1990's (when he was in Sudan). In November, 1996, an operative in Virginia, using a British credit card, purchased a satellite phone which was sent to Bin Laden (then in Afghanistan) by way of Khalid al-Fawwaz, his unofficial press secretary in London. US intelligence was aware of this purchase from the start and and monitored Bin Laden's satellite phone until he stopped using it in August, 1998. In 2002, billing records for this phone were made public. They are highly revealing as to where the most Al-Qaeda contacts were.

Out of 1,100 calls, the destination of 100 is undetermined. Of the remaining 1,000 calls, the largest number, between 238 and 260, were to Britain. These calls went to 27 phone numbers (hardly an unmanageable number a FISA-like court). Approximately half (143) went to Khalid al-Fawwaz, and many went to a colleage of al-Fawwaz. Most of the others were to pay phones near al-Fawwaz or his associates. Yemen received the next largest number, with 221. Yemen had a major communications hub to Al-Qaeda operations the world over. Sudan, Bin Laden's old host, was next, with 131 calls. Next was Iran with 106. (Iran is believed to have assisted terrorists in transit in and out of Afghanistan). Other destinations receiving a relatively high numbers of calls included Azerbaijan (67), Pakistan (59), Saudi Arabia (57) Kenya (scene of one of the US embassy bombings, at least 56), Egypt (number unknown), and an unknown ship in the Indian Ocean (13). A total of six calls went to the United States. None at all went to Iraq.

Several things here are significant. One is that clearly there were Al-Qaeda operatives in the United States from 1996 through 1998, including the one who purchased the satellite phone. Second, the scale seems to have been small. Bin Laden made a total of six calls to the United States in nearly two years (possibly all to the same person), hardly an unmanageable number for FISA. Of course calls from Bin Laden himself are only the tip of the iceberg. Calls from all other Al-Qaeda sources, including numbers captured in Afghanistan, will presumbably add up to something much larger. Still, Bin Laden's contacts with the US were a small portion of his total, about six out of a thousand.

Assuming a similar ratio, 6 US phone numbers for every 1000 numbers captured from Al-Qaeda documents, laptops and cell phones, this would mean that if 10,000 numbers were captured, only 60 would be US numbers. If 100,000 numbers were captured, 600 would be US numbers. Sixty warrants all at once might seem like a large number, but presumably captured numbers trickled in in batches smaller than 10,000 at a time. Sixty warrants over a month or two does not seem like an unmanageable number. Admitted, requests for 600 warrants to wiretap US phone numbers might be overwhelming, but it seems most unlikely that our forces have captured anything close to 100,000 telephone numbers from Al-Qaeda sources.

Would the presence of a US number in a captured Al-Qaeda document, laptop or cell phone be sufficient probable cause to issue a FISA warrant? That information is not public. We do know, however, that during the Millenium Crisis when Ahmed Ressam was caught crossing the Canadian border with a bomb in his trunk, the FBI was able to get warrants to wiretap to "hundreds" of conversations. These warrants including a co-conspirator linked to Ressam because his phone number was on a business card in Ressam's wallet. It seems likely, then, that any US number in possession of a terrorist in Afghanistan or Pakistan, would be enough for a warrant.

My (admittedly speculative) opinion, therefore, is that out of the total telephone numbers captured from Al-Qaeda members, it is most unlikely that there are so many US numbers as to overwhelm the FISA court (or that such requests would be denied). Non-US numbers do not require a warrant to surveil.

On a final note, the link cited has a great deal of other interesting and potentially explosive information that I hope to discuss in the near future.

Now What?

Christopher Dodd has blocked the vote on retroactive immunity for telecoms until next year, but that merely postpones the ultimate showdown.

To recap, the FISA court is believed to have ruled last August that wiretapping of foreign-to-foreign calls passing through cables in the US required a warrant. Everyone agreed that this was a serious threat to national security, and that a law was needed exempting such calls from the need for warrants. Congress originally prepared such a law but, under Administration pressure, passed modifications to FISA that may or may not have allowed warrantless surveillance of all international calls into and out of the United States. But Congress also made a 6-month sunset provision on the law and sought to placate critics by assuring them that tighter restrictions could be enacted in six months.

In the clear light of hindsight, the six-month sunset turns out to have been either a tactical error or a clever ploy by people hoping to leverage even greater concessions to the Administration. The law sunsets in February, and our national security is genuinely in danger if we require a warrant to listen into foreign-to-foreign calls. George Bush has vowed to veto any bill that does not grant retroactive immunity to lawsuit to telecoms (the only truly effective way we have right now of finding out just what the Administration has been up to), let alone any bill that would shrink his powers of warrentless surveillance. In effect, he is holding our national security hostage.

"Anonymous Liberal" has an excellent post explaining the effectiveness of such a veto threat:

Under our constitutional framework, the presidential veto is an enormously powerful weapon, particularly when it is being wielded by a lameduck president who has long ago bottomed out in the polls. The Democrats, even if they were to act in lockstep unity, do not have the votes to override a veto. This puts them in a particularly disadvantageous position when it comes to legislation that,for whatever reason, has to pass.If no bill needs to pass, the Democrats can simply pass their preferred legislation (assuming there's no filibuster) and use the President's veto as campaign fodder. No progress is made, but at least no affirmative damage is done and maybe someday there won't be a Republican president standing in the way. But when it comes to mandatory appropriations bills and other necessary pieces of legislation, doing nothing really isn't an option. When confronted with a presidential veto, the Democrats must choose either to pass a bill the president will sign or reap the political consequences of doing nothing.
. . . .

The same dynamic is at play in the FISA debate. If it hadn't been for the FISA Court's ruling earlier this year (the text of which has still not be released publicly), Congress could afford to do nothing. But, at least according to published reports, the Court ruled that certain foreign-to-foreign communications that pass through U.S.-based switches require warrants before being intercepted. Because all sides agree that legislation is necessary to address this narrow issue, Bush is able to use that need as leverage to demand a FISA reform bill that contains all sorts of other bells and whistles, including telecom immunity. If Congress were to provide him with a bill, like the House bill, that doesn't give him everything he wants, he'd veto it and claim that Congress wasn't providing him with the tools necessary to protect the country from terrorists. He'd hold out for the bill he wants, even if it it means genuinely harming our ability to detect terrorist threats.

It should be noted, however, that our security is not at stake to the degree AL would suggest. Although the bill sunsets in six months, it also authorizes the government to seek approval from for its procedures, and such authorization will remain in effect for one year after approval, even after the law sunsets. In other words, if the Administration gets approval from the FISA court in February, 2008, shortly before the law sunsets, it will continue to have authority to wiretap international calls without a warrant until February, 2009 (i.e., past the Bush Administration). So even if Bush vetoes legislation that does not include retroactive immunity, the actual danger will not begin until the next administration. Congress will not have increased our vulnerability to terrorism by refusing to give Bush what he wants. It will merely have increased its own vulnerability to demagoguery, a bigger chance than most Democrats are willing to take.

Even so, in the clear light of hindsight, perhaps it would have been better after all not to have created a six-month sunset Perhaps it would have been wiser from Congress to make the sunset run some time after the end of the Bush Administration and gambled on a more reasonable President the next time around.

Christopher Dodd for Attorney General

Kudos to Christopher Dodd for blocking telecom immunity for FISA violations, although, alas, this probably just postponed the inevitable. I have leaned toward Dodd for President for some time for no better reason than that he had the strongest resume of the candidates. But this action clinches it; if he is still on the ballot when my state holds primaries, he will have my vote. Of course, it is too late for Dodd to have any chance of winning the nomination, and even if he did, the embrace of the netroots in the primaries is still probably the kiss of death in the general election. But I believe it is worth while for anyone who cares about the Bush Administration's violations of civil and human rights to vote for Dodd anyhow. If enough people show support for Dodd, it may show the Democrats (assuming they win the election) that we are an important constituency that has to be taken into account.

Many people, knowing that Dodd has no chance of being President, are proposing him as Senate Majority Leader. I have a different office in mind -- Attorney General. In the leadup to the 2006 elections, I hosted Calling For Change parties for MoveOn.org (something very much against my basic inclination) because I believed that the election mattered. I had no illusion that Congress would pass any worthwhile legislation (Bush still had the veto, after all), but hoped that they would at least block any further grants of power and investigate the Administration's abuses to date. In that they have disappointed. Whether it is because they do not want to expose what the Administration has done or because they are too weak-kneed to stand up and have a showdown makes no difference; they have failed in their job to get to the bottom of things. As Senate Majority Leader, Christopher Dodd is unlikely to change any of this.

Some people's next hope is to win the presidency. Once Democrats control the executive branch, at last they can determine, expose, and root out the Bush Administration's abuses. Well, yes, they can, the question is whether they will want to. It seems a reasonable bet that Hilary Clinton as President will be little more than Bush-lite. Barrack Obama will probably want to reconcile and move on. Christopher Dodd would do the job as President, but he stands no chance of winning. But if our next President (assuming the Democrats win) would name Dodd as Attorney general, he would have the chance.

Granted, the worst abuses do not appear to have taken place in the Justice Department, but in the intelligence services. And, granted, Dodd is a poor choice for Intelligence Directory. Clandestine intelligence is a dirty business, and no doubt we really do need to leave it to the sort of people who should be kept on a short leash. But the Justice Department is the leash. The Attorney General holds it. And Christopher Dodd is the man for the job.

Does It Matter that the Democrats Won Congress?

So, now that the Democrats have (once again) caved and given George Bush what he wanted, it is time to ask, what was the point in electing them to Congress in the first place? Speaking just for me, I did not really think they could end the war in Iraq, but I did expect them at least to expose George Bush's past abuses and hold the line on future ones.

The score so far:

On the plus side: Donald Rumsefeld has been fired and replaced with a sane Secretary of Defense. Modest ethics reforms have been passed. The Administration is beginning to rediscovery diplomacy. The President has taken his surveillance program to the FISA court and asked for a new law when the court turned them down. Henry Waxman's investigations have made them sweat a little. Alberto Gonzales has been completely humiliated. And at least did not give away the entire store and pass anything as bad as the Specter bill, which would have made compliance with FISA completely voluntary.

On the minus side: No investigation of the intelligence manipulation that got us into Iraq in the first place. We haven't learned a thing about secret warrantless wiretappings. Or black sites, extraordinary renditions, not-quite-torture and GTMO, etc. Congressional investigators seem more interested in the US Attorney firings, which may threaten their own electoral prospects, than in details like war or civil rights. No legislation has been passed to reign in executive abuses (although, admittedly, that would be a futile gesture, since the President would veto it). And now this.

There are only two explanations for the Democrats' behavior. The charitable one is that they are spineless:

Bush has invented a remarkable game of chicken that seems to work, in spite of its irrationality: If you pass a bill that solves the immediate crisis but I have other objections to, I'll veto the solution and then our country will be in immediate danger. And it will be your fault that I put the country in danger!

If the Democrat had any gumption, they would play a little chicken in return -- pass the bill exempting foreign-to-foreign communications and dare Bush to veto it, screaming all the time, "He's endangering us! He's refusing to sign a bill that would let us spy on terrorists! He's holding the whole nation hostage just so he can have his way!"

And that is the charitable explanation. The less flattering one is that Democrats are all too happy to aggrandize executive power, since they hope to win the next Presidential election and have George Bush's power at hand.

An Enlightened Layperson's Analysis of the New FISA Bill

Sigh!! So the Democrats have caved and given George Bush just what he wanted in terms of FISA modifications. Before giving way to general outrage, the first order of business should be to understand just what Congress has enacted and why.

For reasons that have not been made public, one of the FISA judges recently ruled that the Administration was in violation of FISA. Although the what the judge ruled is unknown, there is a general consensus on what happened. FISA, in its original form, did not require a warrant to listen in to calls taking place entirely outside the United States. Since FISA was enacted, however, calls are increasingly sent over fiber optic cables that may be far from the actual people talking. A call between two people outside the United States may pass through a cable in the US. It is believed the court ruled that a warrant would be required to listen in to such a cable. This was generally agreed to be a flaw in need of correction. The difference between Congressional Democrats and the Administration was how much leeway to allow listening into such a cable.

A comparison between the old law, the proposed Democratic bill, and the Administration's bill that passed is as follows:

The old FISA law:

• Defined "electronic surveillance" requiring a warrant as (1) surveillance intentionally targeting of a "United States person" (citizen or permanent legal resident) within the US, or (2) surveillance of the wire communications of a person in the United States, if the acquisition takes place within the US, or (3) surveillance of radio communications between people within the US, or (4) any other surveillance within the US that might come up.
  


• Permitted surveillance without a warrant inside the US for periods of up to one year if the Attorney General certified in writing that that it applied only to foreign governments or embassies and that appropriate "minimization procedures" were applied. (Minimization procedures are rules for limitnig innnocent information that may be accidentally obtained).
  
• Established procedures for applying for FISA warrants.
  


• Commanded the judge to issue a warrant if (1) there is probable cause to believe the target is an "agent of a foreign power" (including terrorist organizations), (2) minimization procedures are adequate, and (3) the application has been properly prepared and, if the target is a US person, is not "clearly erroneous."



• Required telecommunications companies to comply with FISA warrants and immunized them from liability for complying with FISA.
  

The Democratic bill would have:

• Made clear that foreign-to-foreign communications routed through the United States do not require a FISA warrant, even if the surveillance takes place within the US.
  


• Required the Attorney General to submit an application to the FISA court for a one-year order explaining (1) how it is determined that targets of the surveillance are outside the US, (2) the general information being sought and "foreign power" (incuding terrorist organization) that is the target (although individual persons and places need not be named), and (3) minimization procedures being used.
  


• Commanded the judge to grant the order if (1) the surveillance is not a kind requiring personal FISA warrants, (2) the methods described are reasonably designed to determine whether the persons are outside the US, (3) foreign intelligence is a "significant purpose" of the surveillance, and (4) minimization procedures are adequate.
  


• Required telecommunications companies to comply with the court order and immunized them from liability for complying.

The Administration bill that actually passed:

• Makes clear that FISA warrants are not required for surveillance "directed at a person reasonably believed to be located outside the United States."
  


• Gives the Attorney General and Director of National Intelligence authority to authorize such surveillance for one year without a court order, provided they certify (1) there are reasonable procedures in place for determining the people surveilled are outside the US, (2) no individual FISA warrant is required, (3) foreign intelligence is a "significant purpose" of the surveillance, and (4) minimization procedures are adequate.



• Provides for court review of the Attorney General's guidelines 4 to 6 months after the law is enacted. The court may rule against the government only if it finds the determination is "clearly erroneous."
  


• Requires telecommunications companies to comply with the AG and DNI directives and immunize them from liability for complying. Companies could challenge the legality of such a directive in the FISA court.

So, what are the important differences?

With regard to when a warrant is required, the old FISA did not specify any particular calls not requiring a warrant. However, reading the definitions closely, one can see that it did not require a warrant for any communications taking place entirely outside the United States or international radio communications. More controversially, FISA required a warrant for "any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." This would seem indicate that if the NSA wiretapped a person outside the US, and if the wiretap itself took place outside the US, they could listen in on that person's calls with someone inside the US. However, the NSA could not monitor such a call from a switch inside the US. (This was the crux of the debate over warrantless surveillance; was a warrant required to listen to calls in and out of the US).

The Democratic version excludes from warrant only "communications between persons that are not located within the United States . . . without respect to whether the communication passes through the United States or the surveillance device is located within the United States." This would still require a warrant to wiretap calls between the US and other countries, if the wiretap occurred within the US. The Administration version exempts surveillance "directed at a person reasonably believed to be located outside of the United States." Wiretapping of international calls in and out of the United States would not require a warrant so long as the target was "reasonably believed" not to be in the country. The huge question here is whether "directed at a person reasonably believed to be located outside of the United States" means that our international call can be wiretapped without a warrant only if the person on the other end is a specific target, or if any international call is fair game.

Obviously, there are major enforcement differences between the bills. In the Democratic version, the Attorney General would have to show the court that he was using procedures to protect American calls from surveillance before beginning. In the Administration bill, the AG and DNI have four to six months of unsupervised surveillance, and the FISA court can reign them in only if their procedures are "clearly erroneous." How alarming this is all depends on how far you trust Alberto Gonzales, I guess.

Finally, all versions are superficially similar in requiring telecommunications companies to participate in wiretapping and immunizing them from liability for complying. However, Professor Orin Kerr points out that there is a difference between the Administration version and either the Democratic version or the old FISA. The Administration version compels compliance with an executive order (with the opportunity to appeal it to court). The other versions require compliance with a court order.

Next: Does it matter that the Democrats won last November?

Update: JAO, at Balkinization, adds a new wrinkle. The Attorney General is not required to make the certifications provided in the new law. JAO believes that the new statute permits the NSA to listen in to any calls between the US and other countries, even without the AG certifying that "reasonable procedures" were used to ensure the surveillance was "directed at" people outside the US, the surveillance was for foreign intelligence, or that minimization procedures were used. However, without such certification, the government cannot compel telecommunications companies to cooperate. (Nor, presumably, would they be immune from liability).

Second update:
Occasional Observer on why JAO's interpretation is probably wrong. Speaking solely as an Enlightened Layperson, I am inclined to agree with Occasional Observer.

The Latest on Warrantless Surveillance

(NOTE: I was unable to link directly to the relevant cases and am therefore linking instead to sites that contain such links).

The Sixth Circuit Court of Appeals has now struck down the trial judge's ruling in ACLU v. NSA finding the Administration's program of warrantless surveillance unconstitutional. The Plaintiffs' standing to sue was always questionable, since none of them had any actual evidence that they had been wiretapped without a warrant. Instead, various international lawyers, journalists and scholars whose professions brought them into contact with terrorism suspects brought suit claiming the program had a "chilling effect" on their conversations. That being the case the Court, by a 2-1 majority, dismissed the case for lack of standing without making any decision the merits about the Administration's actions. Only Judge Ronald Lee Gilman, dissenting, found standing and expressed the opinion that the Administration acted illegally. Reading between the lines, however, the other two judges do drop hints as to how they might have ruled had a plaintiff with standing appeared.

Plaintiffs made claims under the First Amendment, Fourth Amendment, Separation of Powers, FISA, Title III (the law governing domestic criminal warants) and the Administrative Procedures Act (APA). Judge Alice Batchelder, writing the majority opinion, addresses each of the plaintiffs' claims at length to explain why a person who cannot prove warrantless wiretapping has no standing to make it. Many of her opinions are perfectly reasonable, but others are disturbing.

She begins with a tediously long (pages 11-22) analysis as to why there is no claim for violation of First Amendment rights of free speach and association. A mere "chilling effect" on conversation does not constitute injury in fact. Furthermore, it is not the fear of warrantless surveillance, but the fear of any surveillance that causes the "chill," and requiring warrants would do nothing relieve it. The First Amendment claims were always weak, and Batchelder's analysis seems reasonable except for one sentence (p. 20), "[T]here is no evidence in the record from which to presume the information collected by the NSA via warrantless wiretapping is not complying with, or even exceeding, FISA's restrictions on the acquisition, retention, use, or disclosure of this information (i.e., the minimization requirements)." This seems implausible. If the NSA is meeting or exceeding all minimization requirements, why not just get a warrant?

The Fourth Amendment claim she finishes off in less than a page. Absent proof they have personally been wiretapped without a warrant, plaintiffs have no Fourth Amendment claim (p. 23). Batchelder makes a comment (pp. 23-24) on the separation of power claim that raises a red flag, "This . . . accusation . . . presupposes that the Constitution gives Congress the authorityto impose limits on the President's powers under the present circumstances." She does not rule that Congress does not have that authority, only that the plaintiffs lack standing because they cannot prove they were wiretapped. But that comment sounds like a broad hint as to how she would rule if the issue of Congress' constitutional authority to pass FISA ever came before her.

Batchelder also makes quick work (pp. 27-30) of the APA and Title III claims by pointing out that neither statute applies in this case. It is her statements on FISA that are the most disturbing. FISA applies to "foreign intelligence information," including international terrorism, and since Attorney General Gonzales says this program was limited to terrorists, that settles that question. Furthermore, FISA has a specific legal definition of "electronic surveillance," and the plaintiffs cannot prove the NSA's program involved anything within that legal definition (p. 30). Even though Title III claims to be the exclusive means for domestic wiretapes and FISA claims to be the exclusive method for foreign wiretaps, that does not mean that all wiretaps are covered by one or the other (pp. 32-33). According to Batchelder, there are any number of wiretape outside any legal regulation so long as FISA does not specify them. She also holds that, since FISA allows only claims for money damages and not for injunctive relief (p. 31), she cannot enjoin (order) the government to obey the law. Although Batchelder dismisses the case for lack of standing, her ruling contains strong hints that if a plaintiff with standing appeared before her, she would indulge every inference in favor of the government and quite probably find FISA unconstitutional.

Judge Julia Smith Gibbons made a separate concurrence (pp. 36-40), agreeing that the plaintiffs lack standing, but declining to address any of their individual claims (although she finds both other judge's opinions "able.") Why? Presumably because she does not agree with some things Judge Batchelder said on the subject. (One hopes the claim that there is a wide range of wiretapping not regulated by any law is one of them). Perhaps Gibbons is hinting here that if a plaintiff with standing appeared before her, she would treat the claim more favorably than Batchelder.

Finally, Judge Ronald Lee Gilman dissented. His opinion was that the plaintiffs were were attorneys talking to clients overseas had standing to sue. As attorneys, they represented terrorists, talked to terrorist clients and witnesses, and visited terrorist websites. These activities were protected by the attorney-client privilege. Gilman believes that warrantless surveillance could infringe on this privilege in a way that surveillance with a FISA warrant could not because of the "minimization procedures" FISA requires, including the protection of any privileged information overheard. To Batchelder's speculation that the NSA might have met or exceeded the FISA minimization requirements, Gilman offers the words of Administration members involved in the program, that it had a "softer trigger" than FISA, and that the Executive Order on acquisition, retention and dissemination of information (Exective Order 12333) does not protect privileged communications (pp. 49-50). Unless lawyers know such minimization procedures are being used to protect privileged communications, they cannot safely talk to their clients over the telepone (pp. 50-51).

He refutes the contention that some wiretapping falls outside either Title III or FISA, but pointing out that both laws make clear they are the "exclusive means" (not just the exclusive statutory means) of electronic surveillance, and that Title III expressly says that its procedures and FISA's procedures are the exclusive means of wiretapping allowed. Even Attorney General Gonzales has acknowledged that FISA requires a warrant for the type of surveillance being done (pp. 54-56). The claim is not moot, even though the Administration has now agreed to seek a warrant with the FISA court for its surveillance because the President reserves the right to return to warrantless surveillance any time he wants (pp. 56-57).

As for the plaintiffs' causes of action, Gilman does not address their constitutional claims, commenting that their statutory claims are stronger (p. 58). (Although he denies it, this probably means he would not rule in favor of the constitutional claims, given the chance). He repeats the endlessly given explanation why the AUFM did not repeal FISA (a specific statute trumps a general one; FISA has provisions for wiretapping during a war; the Administration sought changes to FISA after the AUFM passed and did not seek approval for its program because it did not expect to get it) (pp. 59-61).

Only at the very end (pp. 62-63) does he address the argument that FISA unconstitutionally infringes on the President's "inherent authority" to warrantless wiretap, and he does not address it at length or in depth. His argument is that the Constitution divides war making powers between the President and Congress. Congress has regulated the President's war making authority before. Under the famous Youngstown decision, the President's wartime powers are at their highest when he acts with authorization of Congress, intermediate (but still, in war decisions, generally lawful) if he acts when Congress is silent, and weakest if he acts against the will of Congress. "Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting on the subject" (i.e., by finding the law unconstitutional). The government relies on In re Sealed Case (which I have also addressed) to argue his "inherent authority." Gilman dismisses this on the grounds that it is dictum, based on pre-FISA cases, and that all post-FISA cases addressing a challenge to the Act's constitutionality have upheld it.

This is good enough for a dissent on the issue of standing. But if any court is going to make a binding decision upholding FISA against the Bush Administration, it is going to have to make a stronger argument than that. There are two more cases on the subject pending.