By far the most intriguing take on the NSA/wiretapping scandal is (via
americablog.com) at
Defense Tech.
Read the whole thing, but here's the relevant excerpt:
There's more to the NSA domestic spying case than the current storyline -- that much is clear. The idea that the Bush Administration needed to bypass the courts to get wiretaps quickly makes no sense; under the current system, you can start eavesdropping, and get a warrant later. The notion that disclosing the surveillance would somehow tip off potential terrorists is laughable, too; Al Qaeda types know they're being monitored.
That's all assuming, of course, that the wiretaps in this case are the same as in any other. But maybe they're not. Maybe there's something different about this surveillance. It could be in its scope, as Laura suggests. But I'm guessing -- and this is just a guess -- that the real difference is in the technology of the wiretaps themselves.
Look at what former senator Bob Graham (D-Fla.), who was briefed on the eavesdropping program, told the Washington Post:
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches.
Or what New York Times editor Bill Keller had to say about the paper's year-long delay in breaking the story:
In the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.
So maybe the NSA wiretaps were using a new kind of capability; one that terror suspects might not have know about; one that might have even made the FISA court uncomfortable, somehow.
At this point, fellow tinfoil-hat bearers will think of an NSA program called Echelon. The conspiracy theory is that Echelon can detect any use of any word/phrase/code name via any medium (phone, fax, email, etc) anywhere on earth.
That's crazy talk, of course, but as is often the case with conspiracy theories, what seems to be more plausibly truthful is a less dramatic version of the conspiracy.
James Banford, author of the classic work on the NSA (Puzzle Palace) wrote a 1999 Washington Post article on Eschelon and the privacy/warrant concerns it raises:
People in Europe and the United States are beginning to ask why. Has the NSA turned from eavesdropping on the communists to eavesdropping on businesses and private citizens in Europe and the United States? The concerns have arisen because of the existence of a sophisticated network linking the NSA and the spy agencies of several other nations. The NSA will not confirm the existence of the project, code-named Echelon.
The allegations are serious. A report by the European Parliament has gone so far as to say "within Europe all e-mail, telephone and fax communications are routinely intercepted" by the NSA. As one of the few outsiders who have followed the agency for years, I think the concerns are overblown--so far. Based on everything I know about the agency, and countless conversations with current and former NSA personnel, I am certain that the NSA is not overstepping its mandate. But that doesn't mean it won't.
My real concern is that the technologies it is developing behind closed doors, and the methods that have given rise to such fears, have given the agency the ability to extend its eavesdropping network almost without limits. And as the NSA speeds ahead in its development of satellites and computers powerful enough to sift through mountains of intercepted data, the federal laws (now a quarter-century old) that regulate the agency are still at the starting gate. The communications revolution--and all the new electronic devices susceptible to monitoring--came long after the primary legislation governing the NSA.
[snip]
The agency's mandate is to monitor communications and break codes overseas; it also has a limited domestic role, with targets such as foreign embassies. It can monitor American citizens suspected of espionage with a warrant from a special court. It is potentially the most intrusive spy agency. Where scores of books have been written about the CIA, the only book exclusively on the NSA is the one I wrote in 1982.
Echelon, which links the NSA to its counterparts in the U.K., Canada, Australia and New Zealand, amounts to a global listening network. With it, those agencies are able to sift through great quantities of communications intercepted by satellites and ground stations around the world, using computers that search for specific names, words or phrases.
Whether the NSA will go too far with Echelon is not an idle question. In the mid-1970s, the Senate and House Select Committees on Intelligence were created in part as a result of NSA violations. For decades, the NSA had secretly and illegally gained access to millions of private telegrams and telephone calls in the United States. The agency acted as though the laws that applied to the rest of government did not apply to it.
[snip]
As a result of the investigations, Congress in 1978 passed the Foreign Intelligence Surveillance Act (FISA), which stated in black and white what the NSA could and could not do. To overcome the NSA's insistence that its activities were too secret to be discussed before judges, Congress created a special federal court, the Foreign Intelligence Surveillance Court, to hear requests for warrants for national security eavesdropping. In case the court ever turned down an NSA request, the Foreign Intelligence Surveillance Appeals Court was created. It has never heard a case.
In the more than two decades since the FISA was passed, the law has remained largely static, while cell phones, e-mail, faxes and the Internet have come to dominate how we communicate. The point hasn't been lost on the NSA. Last month, Air Force Lt. Gen. Michael Hayden, director of the NSA, gave a speech inside the agency. I was one of the few outsiders invited to attend. Hayden warned of the "new challenges" in "information technology" that the agency now faces. "The scale of change is alarmingly rapid," he said, noting that "the world now contains 40 million cell phones, 14 million fax machines, 180 million computers, and the Internet doubles every 90 days."
[snip]
The issue has also caught the attention of the House and Senate intelligence committees, and the NSA's response has been anything but reassuring. As part of its normal oversight responsibilities, the House Select Committee on Intelligence last spring requested from the NSA a number of legal documents that outline the agency's procedures for its eavesdropping operations. The agency, in essence, told the committee to take a hike. It refused to release any of the documents based on a unique claim of "government attorney-client privilege." Despite repeated requests by the intelligence committee, the NSA insisted that those documents "are free from scrutiny by Congress." Eventually, after months of negotiation, the NSA complied.
[snip]
Still, the NSA's stonewalling of Congress should serve as a warning bell. Under Section 502 of the National Security Act of 1947, as amended, the heads of all U.S. spy agencies are obligated to furnish "any information or material concerning intelligence activities . . . which is requested by either of the intelligence committees in order to carry out its authorized responsibilities." Rep. Porter J. Goss (R-Fla.), the House committee's chairman and a former CIA officer, has long argued for a stronger intelligence community, and even he seemed stunned by the NSA's arrogance. The NSA's behavior, he said, "would seriously hobble the legislative oversight process contemplated by the Constitution."
Rather than disappear further from view, the agency should publicly address these concerns, and the intelligence committees should hold hearings to update the laws governing the NSA and to close what now amount to loopholes. For example, the 1978 FISA prohibits the NSA from using its "electronic surveillance" technology to target American citizens. But that still leaves open the possibility that Britain's GCHQ or another foreign agency could target Americans and turn the data over to the NSA. Another problem is that the FISA appears not to apply to the NSA's monitoring of the Internet. While covering such things as "wire" and "radio" communications, there is no mention of "electronic communications," which is the legal term for communicating over the Internet as defined by the Electronic Communications Privacy Act of 1986. Worse, FISA applies only "under circumstances in which a person has a reasonable expectation of privacy."
Think about it: a fairly new, still-developing, largely secret NSA program scrambling to keep up with an explosion in communications technologies under the direction of comparatively ancient laws.
This makes sense not only with Lindsey Graham's quote, but also with Dick Cheney's absurd-sounding claim that if we had had the ability/permission to do whatever it is the NSA is doing, we would have found Mohammed Atta et al, but because we didn't we didn't even know they were here.
That's the strangest thing anyone has said, because generally the purpose of wiretapping is to confirm what is already suspected in a specific case. But you can't suspect something of someone you don't even know is there.
Echelon, in this context, fits perfectly with the Bush doctrine of preemption--it's preemptive intelligence, sifting through millions and billions of conversations and bits of information flowing through the air in an attempt to find the terrorist messages.
And this kind of preemptive intelligence, furthermore, would raise serious, extremely difficult questions as far as what is legal and what is not.
Granted, all of this is total speculation, but it seems to make some of the weirder pronoucements by government officials make more sense, as well as fitting in with the greater themes promulgated by the Bush administration.