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Posts Tagged ‘nsa’

How FISA protected al Qaeda kidnappers

Posted by Richard on October 17, 2007

Apparently, it's a very small world when it comes to telecommunications. Two people having a cell phone conversation in Iraq are likely to have that call routed through American telecom infrastructure, where it could be intercepted by U.S. intelligence agencies. But under the old FISA law (which the Democrats are trying to restore and further tighten this week), they'd need a warrant. It could be granted retroactively, but first someone has to stick their neck out and grant emergency permission based on the belief that the warrant will later be approved. Think bureaucrats and political appointees are eager to do that?

The problem isn't entirely theoretical, according to a New York Post story. On May 12, while the strict FISA rules were still in effect, al Qaeda gunmen in Iraq attacked a U.S. outpost, killing four soldiers and taking three others — Spc. Alex Jimenez, Pfc. Byron Fouty, and Pfc. Joseph Anzack Jr. — hostage. The subsequent frantic search led to information possibly identifying the kidnappers. U.S. intelligence agents asked for permission to intercept communications that might lead to the kidnappers and their captives:

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

"The intelligence community was forced to abandon our soldiers because of the law," a senior congressional staffer with access to the classified case told The Post.

"How many lawyers does it take to rescue our soldiers?" he asked. "It should be zero."

Democrats supporting the tightening of FISA denounced the release of the story as a cynical attempt to politicize the search for the soldiers. Fox News has a fair and balanced presentation of both sides, along with a detailed timeline. The Democrats' House Intelligence Committee staff argued that it shouldn't have taken NSA lawyers five hours to determine that they had probable cause, and it wouldn't have been necessary to track down Attorney General Alberto Gonzales in Texas if three other Justice Dept. officials authorized to approve the request had been available.

Granted, five hours seems like a long time for lawyers to hem and haw over probable cause. But consider the climate. These people knew there was an ongoing surveillance firestorm, complete with leaks to the New York Times, congressional hearings, lawsuits, endless political posturing, and threats of legal action. If you were an NSA attorney, how quickly would you stick your neck out and say, "I recommend going ahead, and I guarantee the FISA court will retroactively approve"? If you were Gonzales or one of the assistant AGs, wouldn't you carefully review the material presented to you before authorizing the intercept, knowing it could land you in front of a hostile committee with the news cameras rolling?  

The Democrats' argument amounts to saying that the restrictions wouldn't have been a problem if the officials involved had just acted without regard for the possible consequences — the consequences that those same Democrats have done their best to hang over the officials' heads.

It's nice that Democrats are so concerned about our privacy now, considering how hard they worked to undermine it for umpteen years (remember Carnivore, "key escrow" encryption, "Know Your Customer," and John Effin' Kerry's repeated attempts to further destroy financial privacy?). But do we have to protect the privacy of what amounts to battlefield communications by our enemies during a war? 

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Did the NSA save the New York subways?

Posted by Richard on June 21, 2006

Here’s another belated observation about a Sunday news show. On CNN Late Edition, Wolf Blitzer interviewed Senators Pat Roberts and Dianne Feinstein, the chair and the ranking Democrat on the Senate Intelligence Committee, and he asked them about the story of an aborted 2003 al Qaeda plot to attack New York’s subways. Both senators were circumspect, as you’d expect. But Roberts suggested something — and Feinstein appeared to back him up — that I found remarkable. Blitzer starts off (emphasis added):

Senator Roberts, the chairman, let me start with you and read to you from the new edition of Time Magazine, our sister publication, an excerpt from the book, "The One Percent Doctrine" by Ron Suskind.

In it, this paragraph: "There would be several placed in subway cars and other strategic locations and activated remotely. This was well past conception and early planning. The group was operational. They were 45 days from zero hour. Then Ali told his handlers something that left intelligence officials speechless and vexed. Al- Zawahiri had called off the attacks," referring to Ayman al-Zawahiri, the number two Al Qaida leader behind Osama bin Laden.

A report that there were cyanide gas attacks planned for the New York subway system that were inexplicably called off. What can you tell our viewers about this?

SEN. PAT ROBERTS (R), KANSAS: Well, not very much, except to say the Intelligence Committee is briefed on these kinds of threats. I would simply say that we’ve had a briefing.

It points up, once again, the value of the terrorist surveillance program, the NSA program that’s been in the news so much. We are able to detect and deter and stop such attacks. And we were very fortunate that that did not happen.

BLITZER: But can you confirm that there was such a plot in the works?

ROBERTS: I can’t either confirm or deny, but I can just simply repeat that we are briefed on these kind of threats. And, as I say again, I’m very happy we have the capability to do what we do to stop these attacks. And that goes back to the statement you’ve heard a lot that, you know, thank goodness we’ve not had an attack of that nature since 9/11. But that’s not by accident.

BLITZER: Senator Feinstein, I know you’re restricted on what you can say about these kinds of sensitive intelligence-related matters.

Two former intelligence officials have told CNN there was such a plot in the works. We have not been able to confirm that they were only 45 days off of actually launching it. But go ahead and add whatever you want.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, I think the chairman said what could be said about it. I don’t think that anybody doubts that there are people that want to do us harm, that there are those that want to launch these attacks. They will if they can.

And so, you know, there’s the need for eternal vigilance. And I think Senator Roberts is correct. The terrorist surveillance program is an important tool in this area.

And there’s only one defense and that is good intelligence. And there is a very real need for us to do everything we can on the Intelligence Committee to see that the intelligence community, all 16 agencies, have really recovered from what led to the Iraq adventure, which was mistaken information, and that we get it correct.

And in fact, good intelligence has stopped what were real threats. And I think that’s important for the American people to know.

Sen. Feinstein is not exactly a shill for the Bush administration. I interpret those statements as strong hints — quite strong, within the constraints of the "we can’t confirm or deny specifics, we can only speak in generalities" paradigm — that the NSA’s international communications surveillance program played a critical role in learning about — and perhaps deterring the execution of — an attack on New York subways.

That seems pretty significant to me. I suspect that it’s as close to confirmation of a direct benefit from the NSA program as we’re likely to get — until the historians get their hands on the relevant documents about 50 years from now.

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Understanding the NSA data mining

Posted by Richard on May 13, 2006

So, what’s really going on with the NSA and all those phone records? Let me illustrate how the program works using a hypothetical scenario: The US Army is torturing an al Qaeda member using the technique known as "invasion of space by a female." He succumbs to this inhumane treatment and spills the beans about the secret Yemeni phone number used by al Qaeda’s Assistant Director of North American Sleeper Cells.

The Army passes this information to the NSA, which starts looking for phone calls to or from the Yemeni number. Lo and behold, they discover calls from that number to a phone number in Dearborn, Michigan. In fact, there’s a pattern: there’s a call from the Yemeni number to the Dearborn number on the 6th of each month. So they start looking at the calls to and from the Dearborn number, and they find another pattern: on the 6th of each month, shortly after the call from Yemen, the Dearborn number always calls six other Dearborn numbers. Each of those 6 numbers calls 6 more and then orders several pizzas for delivery.

Since the NSA, like the rest of the Bush administration, is in the hands of fundamentalist Christian zealots, the 6-6-6 pattern freaks them out, and they rush off to a FISA judge. He grants access to information about those 36 Dearborn phone customers and a warrant to wiretap the pizza joint’s phone.

In just a few months, the FBI unravels a bio-terror plot involving bad mushrooms and targeting college students throughout the Midwest. Americans everywhere breathe a sigh of relief as the Dept. of Homeland Security lowers the alert level to mauve.

So that’s how the data mining of phone records might work. But you’re probably still confused about some aspects of it, so let me clear a few things up.

Thursday’s USA Today news story wasn’t news. If you read beyond the superficial, ignorant MSM reporting, you knew all this last December. The EFF filed their class-action lawsuit against AT&T in January, and it alleged exactly what the USA Today story breathlessly reported this week as breaking news. Since the story isn’t news, it must have some other purpose, such as undermining the nomination of Gen. Hayden and setting the stage for a media circus during the confirmation hearings next week.

This kind of NSA activity isn’t new. In fact, since this program collects only "externals" — who’s calling whom — it’s far less intrusive than the Clinton administration’s infamous Echelon program, which was specifically designed to collect "internals" — the actual conversations — and use them for a broad range of purposes far less noble than preventing airplanes from flying into buildings. In fact, NSA communications monitoring programs of various degrees of intrusiveness and nefariousness — mostly worse than what’s happening today — have existed under every administration, Republican and Democrat, at least as far back as Kennedy. If you want to grumble and fuss about that ignoble record, fine — I’ll help. But quit hyperventilating.

The information they’re looking at isn’t protected by the 4th Amendment. Back in the Ma Bell days, when phone calls were analog and connections were made in cross-point switches, the government could track who you called by installing a device called a pen register at the phone company switch. All it did was record the numbers you dialed (and back then, you really dialed them). In 1979, the Supreme Court ruled in Smith v. Maryland that Mr. Smith had no reasonable expectation of privacy regarding the phone numbers that he dialed, since he shared them with the phone company, which was free to use the information for billing and other purposes. The Court held that pen registers did not constitute a search, did not violate the 4th Amendment, and did not require a warrant. Today’s digital telephony network comes with the equivalent of pen registers on all the lines.

The information they’re looking at isn’t exactly private. The NSA is looking at phone company CDRs (call detail records). Phone companies use CDRs for billing, marketing, diagnostics, network analysis, and other purposes. Until privacy policy disclosures came along, they probably routinely sold your data to third parties for marketing purposes. Your cell phone records are for sale on the internet.

The information they’re looking at is an example of the dots they were criticized for not connecting. During the debate over reauthorization of the Patriot Act, Debra Burlingame, sister of American Airlines Flight 77 pilot Charles Burlingame III, pointed out an example that’s precisely on point (emphasis added):

NBC News aired an "exclusive" story in 2004 that dramatically recounted how al-Hazmi and al-Mihdhar, the San Diego terrorists who would later hijack American Airlines flight 77 and fly it into the Pentagon, received more than a dozen calls from an al Qaeda "switchboard" inside Yemen where al-Mihdhar’s brother-in-law lived. The house received calls from Osama Bin Laden and relayed them to operatives around the world. Senior correspondent Lisa Myers told the shocking story of how, "The NSA had the actual phone number in the United States that the switchboard was calling, but didn’t deploy that equipment, fearing it would be accused of domestic spying." Back then, the NBC script didn’t describe it as "spying on Americans." Instead, it was called one of the "missed opportunities that could have saved 3,000 lives."

The Democratic Party may have fewer records in its searchable databases, but they undoubtedly contain more detailed personal information than the NSA’s. As Andrew McCarthy pointed out, political parties and candidates are doing far more data mining than the NSA:

Getting elected to Congress is hard work. It is rivaled only by every incumbent’s dearest preoccupation: remaining in congress. It takes untold hours of dedicated labor by highly motivated staffs and party organizations. It takes the expertise of outside experts. It takes meticulous research into the predilections of likely voters. And, most of all, it takes money. Lots of money.

In modern American politics, that requires a fair amount of data mining—the very same bane of our existence that currently has the usual suspects in Congress posturing about whether President Bush should merely be impeached or drawn-and-quartered at high noon.
. . .

So if we’re going to have a national conversation about government data mining, by all means let’s have it. But let’s not just put the administration and General Hayden under the microscope.

Let’s examine the practices of the opposition that purports to find warehousing information and tracking data about American citizens to be the death-knell of liberty.

Let’s take a hard look at the elected officials who are taking a hard look at the NSA.

Here are a just a few questions we might ask Democratic-party chairman Howard Dean and the members of the judiciary and intelligence committees currently grousing for the cameras:

  • Do you maintain databases of American citizens for fundraising purposes?
  • Do those databases contain names, addresses, telephone numbers, e-mail addresses, and other identifying information?
  • Do the databases contain information about the interests of the citizens who have been entered into them? About candidates or causes to which they have previously donated money?
  • Are those databases searchable? If so, what search criteria do you use to divide these American citizens into various categories?
  • Do you do targeted mailings for purposes of raising funds or pushing particular issues?
  • When you target, how do you know whom to target? That is, what kind of information do you maintain in your databases to guide you about which potential donors or voters might be fruitful to tap on which particular issues?
  • Do you trade information about American citizens with other politicians and organizations in the expectation that they might reciprocate and you all might mutually exploit the benefits?

The loudest liberal critics of the NSA are the biggest flaming hypocrites. As the Second Amendment Foundation pointed out, for years, these folks have pushed to compile more and more data about honest, peaceful gun owners, imposed burdensome record-keeping requirements, and promoted the systematic violation of gun owners’ privacy rights and civil liberties:

“The hypocrisy here is staggering,” said SAF founder Alan Gottlieb. “Feinstein, Schumer, Pelosi and others are having fits about the NSA’s possible invasion of privacy over telephone calls, but they’ve never had such reservations about mining gun trace data from federal law enforcement agencies, or demanding other invasive measures against law-abiding gun owners.
. . .

“Their concern over legal ‘fishing expeditions’ obviously does not extend to law-abiding Americans who own firearms, nor to the possibility that such digging could interfere with on-going criminal investigations,” Gottlieb stated. “Isn’t it ironic that Pelosi, Feinstein and Schumer are righteously indignant about probes that are supposed to be uncovering terrorist threats to our country, but they haven’t the slightest concern about digging into the lives of citizens who are no threat at all, and are guilty only of exercising a constitutional civil right?”

I just can’t get all that upset about the records of the phone numbers I’ve called. Not while I can grumble and fuss about this: any time they want, day or night, with no warrant or court order, BATFE agents can barge into a gun dealer’s house or shop, demand to see his records, and determine what guns I’ve bought.

And I’ve never talked to anybody in Yemen.

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