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What's the Big Secret?

the breakfast table
entries
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from: Patrick Radden Keefe
to: Orin Kerr, David Kris, and Marty Lederman

Are They Listening to Me?

Posted Tuesday, Aug. 28, 2007, at 11:30 AM ET
Mike McConnell. Click image to expand.

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.

Best,
Patrick

the breakfast table
entries
12345678910
from: Patrick Radden Keefe
to: Orin Kerr, David Kris, and Marty Lederman

Are They Listening to Me?

Posted Tuesday, Aug. 28, 2007, at 11:30 AM ET
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Patrick Radden Keefe, a fellow at the Century Foundation, is the author of Chatter, which is out in paperback. Orin Kerr is a law professor at George Washington University and blogs at the Volokh Conspiracy. As associate deputy attorney general from 2000 to 2003, David Kris supervised the government's use of the Foreign Intelligence Surveillance Act, represented the Justice
Department at the National Security Council, and assisted the attorney general in conducting oversight of the U.S. intelligence community. Marty Lederman teaches constitutional law at the Georgetown University Law Center and is a frequent contributor to Balkinization and SCOTUSblog
Entry 1: Photograph of Mike McConnell by Jim Watson/Agence France-Presse/Getty Images. Entry 6: Photograph of NSA headquarters in Fort Meade, Md., by NSA via Getty Images.
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Remarks from the Fray:

How quickly we forget, it seems, that the executive, legislative, and executive are all part of the 'government.' What we have here is an argument not about what the government can and can't do, but who in the government can do it. Various people favor various branches, in large part, it seems, because they believe that certain branches share biases they trust and others share biases they don't trust.

All in all, though, a sensible person could question the independence of a bunch of ex-lawyers (judges) and a bunch of ex-lawyers (legislators) - in fact, it is mostly the executive where some variety enters into it; whether we trust them or not is yet another story. In the end, you'd think that judges, cops and lawmakers tend to be in the same camp vis a vis the freedoms of the people.

So, why bother with all this judicial review? Basically to involve more people and slow things down. But do we really want to just gum up the works in fighting terrorism, with the hope that a less powerful government will treat us better? Frankly, if we want a less powerful government, we should probably cut all sorts of mandates, privileges, and so on - eliminate state charity, subsidies, federal regulation of intrastate commerce, etc - and leave the NSA and CIA to do their work fighting terrorism, at least for the moment. The long arm of government into our personal lives starts with the pocketbook, health care, taxes, etc and ends with law enforcement, not the other way around.

--BenK

(To reply, click here.)

Imagine that the government is clever enough that it can come up with a filter that has a 99.99% chance of tagging a non-terrorist communication as non-terrorist, and a 99.99% chance of tagging a terrorist-related communication as terrorist. I think we'd all be impressed. Further guess that as many as 1 out of 10,000 (0.01%) of all the communications under surveillance are terrorist-related.

If you do the math, out of 100,000,000 communications, you'll have 10,000 genuine terrorist communications, 9999 of which you'll correctly tag as terrorist (the other one will slip through the cracks). Of the 99,990,000 non-terrorist communications, you'll correctly tag 99,980,001 of them as non-terrorist, leaving 9999 as false positives. So because terrorist communications are rare, even this very good filter will produce a false positive for every true positive.

And if that 1 out of 10,000 calls is in fact an overestimate, the number of false positives will outnumber the true positives. If only 1 out of 100,000 calls were terrorist-related, then the false positives would outnumber the true positives by about 10 to 1.

And that's ignoring the manpower issue of who's going to drill down into those 19,998 communications tagged as terrorist by the filter, half of which will be a frustrating waste of time.

--StatNerd

(To reply, click here.)

David Kriss says that there is widespread agreement that it is okay for the U.S. government to intercept "foreign-to-foreign" communications without any oversight or accountability. Why is it that Americans, even those who are strong advocates for the right to privacy, can dismiss the privacy expectations of non-Americans without a thought?

Not all foreigners are terrorists hiding out in mountain caverns. Canada is your nearest neighbour, largest trading partner, and a strong friend and ally. When your government closed all U.S. airports on September 11, hundreds of aircraft were diverted to Canada. At the time, no-one knew that there were only four planes involved in the attack, and for all we knew we could have been putting ourselves in harm's way. The authorities in Canada agreed to admit these aircraft into our airspace anyway, and hundreds of Canadian families took stranded American travellers into their homes. Our soldiers have been fighting in Afghanistan since shortly after the invasion, and are suffering casualties at a higher rate than any other forces, including your own.

The NSA has the capacity to monitor the communications of our security services, government officials, businesses, and private individuals. The U.S. Congress has given them free reign to do so, and there is "widespread agreement", among Americans anyway, that this is "appropriate". Why?

--ovation

(To reply, click here.)

What you're doing is a legal analysis of how these programs comport with the jurisprudence and legislation of the past (FISA) and also more recent legislation. This analysis occurs in a relative vacuum.'

It's my understanding that during WWII our security agencies took substantial latitude with privacy protections. If so, were these legal then given wartime conditions? Or was there legislation, since rescinded, that legalized these actions? Or would subsequent jurisprudence make these actions questionable?

Rights cannot be absolute but must be the result of a weighing of threat vs the value of privacy. It would seem obvious that in wartime this balance shifts. Obviously this isn't WWII. But its also not the Cold War. In fact its easy to argue, from a homeland security point of view this situation is more dire than either WWII or the Cold War. Our opponents are indelibly organized to try to kill us in large numbers!!!! They already have.

Then we had other means, more appropriate to the circumstances (armies, planes) to protect us. Now surveillance has gone from a useful auxiliary activity to a primary weapon. So the balance of threat vs. privacy rationally must shift against privacy.

To do so requires action, some of it secret, necessarily on the part of the executive. Such considerations seemingly play no part in your analysis, yet they seem to me to be critical. Obviously in such circumstances we end up relying on the discretion of the executive more than we're used to. Yes there is a greater potential for abuse. But there is a check still.

If discretion is abused in a functional sense that hurts innocent people there will be victims with a cause of action. So far the surveillance programs seem to be victimless "crimes". Or maybe the administration is in fact being reasonable with the program.

--Breaker

(To reply, click here.)

(9/2)

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