Good morning Marty, Orin, and David,
As the only member of our party who hasn't done time as a lawyer at the Department of Justice, I'm excited to spend the next couple of days discussing National Security Agency wiretapping with you. It's an ideal week to explore these issues, given the G-man's resignation yesterday. However smug or inscrutable, his was the public face of this spying program, and the Protect America Act passed earlier this month ensures that his successor, whoever he or she is, will have unprecedented authority to determine how intelligence surveillance is conducted inside the United States.
A couple of years ago, I published a book about the NSA and did a modest tour. This was before the revelations about the NSA published in the New York Times in December 2005 by James Risen and Eric Lichtblau. Wiretapping was not much in the news, and my readings were sparsely attended. But there was invariably someone at the back of the room who, as soon as Q&A began, asked a variant of the same question:
"Are they listening to me?"
After a while I started thinking that if you scratch a paranoid, you find a narcissist. (My audience members often detailed inexplicable clickings on the phone line, to which I could only reply, if you hear the clicking, it's not the NSA.) But I think this reaction to news about wiretapping is, for better or for worse, fairly typical. The statutory nuances of the 1978 Foreign Intelligence Surveillance Act and, for that matter, the larger constitutional issues at stake, tend to leave a lot of Americans cold. So, Slate wants us to try to answer this basic question: Through all the headlines and the hearings about wiretapping over the past 18 months, do we have a sense of the breadth of the administration's domestic eavesdropping operation? Of whom they're listening to, and how? Is there any chance they're reading the e-mail of that guy in the back row at Barnes & Noble?
We're speculating here, obviously. But can we draw on the cryptic public pronouncements of members of the administration, various press leaks, and the effort to amend FISA, to offer useful conjecture about whether the government is deliberately or inadvertently engaged in the warrantless interception of Americans' communications?
First off, I wonder if you all agree that one problem in ascertaining just what's going on is that from the beginning, there have been numerous programs, above and beyond the "Terrorist Surveillance Program" acknowledged by the administration. With well over 40,000 employees and a budget north of $6 billion, NSA is the biggest intelligence agency in the country. They're not running just one program down there at Ft. Meade. In his El Paso Times interview last week, Director of National Intelligence Mike McConnell said, "Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical." But that's disingenuous, no? A significant number of press leaks have suggested that the agency uses various forms of link analysis to scan through the header information on the 650 million communications it intercepts every day in order to turn up individuals who might then warrant more targeted, "surgical" scrutiny. I've long suspected that some kind of broader, mile-wide-and-inch-deep program must be a predicate for the more tailored surveillance that would, in theory, eventually lead to an application to a judge for a warrant, and that this explains the divergent accounts of the program that have emerged. Do you buy that, as a hunch? Is there anything in the debate leading up to the Protect America Act, or anything in the law itself, that might cut for, or against, that interpretation?
My second question is for David, though Orin and Marty, I'm interested to hear your thoughts on this as well. A recent Times story quoted you as suggesting that the new law might give the administration various new powers that hadn't been debated or discussed before Bush signed it. I assumed you were referring to the redefinition of "electronic surveillance" that the piece explores, and kept waiting for them to come back to you so that you could elaborate. But they didn't. Can you now? What sorts of things did you have in mind?
As DNI, McConnell suggested that some of the "offending language" in the alternative Democratic bills, which he rejected and which failed to pass, concerned "minimization." What's at issue here is not foreign-to-foreign calls, which wouldn't require a warrant (even if they pass through the United States), or purely domestic calls, which would, but communications in which one party is in the United States and another is abroad. In these instances, American eavesdroppers are required to "minimize" the impact on the person in the United States. As several bloggers have pointed out, the difference between the winning and losing bills was that the Democrats' version required FISA court oversight of those procedures. That this would be a major sticking point for McConnell seems odd. Orin, how do we square this with the account of the senior White House official who talked with you recently and suggested that "it's actually very rare for a person who the government is monitoring abroad to have communications with a person in the United States"? And how does this map onto what Orin has called the "Marty Lederman question"—whether the new law can be read to permit the warrantless interception of all international communications by people in the United States, so long as it is the foreign parties on the other end of the line who are the "targets" of the eavesdropping? Marty, are you comforted by McConnell's suggestion that this sort of "reverse targeting" would breach the Fourth Amendment and that "You can go to jail for that sort of thing"?
Final question: Someone once told me that you shouldn't believe any conspiracy theory that involves more than five people. I find this pretty persuasive: The more people in on a secret operation, the more likelihood there will be sound judgment, oversight, and, if things get out of hand, leaks. Along those lines, David, you were a senior official overseeing national security issues at DoJ during the first two years of the warrantless surveillance program, and you weren't read into the program. If there's one thing that worries me, instinctively and analytically, it's a profusion of supersecret spooky programs that only a handful of people know anything about. I'm very skeptical about the Protect America Act, for a number of reasons. But can we at least take comfort in the fact that now that the wiretapping is legal, there will be a much broader level of involvement and oversight in Washington, because while it might remain extremely secret, more people who have the relevant expertise and clearance will know that the program exists?
A lot of questions, I realize, but on this issue, questions are mostly what I've got.