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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, January 07, 2006

Sharing our "secrets" with Osama

(post is updated below)

One of the most revealing aspects of the NSA scandal has been the way in which Bush followers have been running around shrieking that national security has been damaged and treason has been committed by the New York Times. All of that is based upon the Times' disclosure that Bush ordered the NSA to eavesdrop without judicial oversight (rather than with it). Now that the initial screaming and demands for hangings are dying down a little, his followers are confronted with the fact that this accusation makes no sense whatsoever, since whether we eavesdrop with judicial oversight or without it can’t possibly be of any use to terrorists.

What has become unavoidably apparent is that their rage over this disclosure stems from the fact that it has embarrassed George Bush and harmed his political interests, not that it has harmed the national interests of the United States. But to them, George Bush is America, and whatever he does is, by definition, the national security of the U.S. Thus, to undermine or impede George Bush -- even to point out that he broke the law -- is, in their minds, to impede the United States and therefore to commit treason.

In any event, John at Powerline thinks -- after he and his comrades spent three weeks screaming "treason" at everyone -- that he finally found an explanation as to how the Times’ story "harms national security." But anyone with an open mind who reads John’s explanation can see that John literally has no idea what FISA is, or what this entire controversy is about. I don’t mean that he’s wrong in his analysis or that he’s interpreting facts incorrectly. I mean that he’s just ignorant of basic, undisputed facts regarding the matter about which he’s opining so pedantically. But, to his credit, John is at least the first person I have seen try to offer an explanation for the "treason" accusation, so it's worth exploring.

John begins his argument, fittingly enough, by citing the Myth of Osama’s Cell Phone:

First, there is apparently no dispute about the fact that when it was published in the American press [in 1998] that we were listening in on Osama bin Laden's cell phone conversations, he either stopped using cell phones or switched to a different technology.

Yes, John is right: there is "no dispute" at all about this cell phone story -- except for the lengthy and detailed article in The Washington Post two weeks ago demonstrating that the whole tale is an urban myth. It’s a cartoon story about gadgets and villains that someone fed to George Bush, who ate it up and then shared it with us at his Press Conference, even though it's plainly untrue.

But even if it were true, anyone who thinks about it for just a few seconds would realize that it negates, rather than bolsters, the accusation that the Times "damaged national security" with its story. According to the myth, the Osama Cell Phone caper happened in 1998. That would mean that it dawned on Al Qaeda at least seven years ago that we try to listen in on their calls and that we have the technology to do it. That, in turn, means that the Times story didn’t tell them anything that they, along with the rest of the world, didn’t already know.

John moves on to next argue that the terrorists didn’t know about this thing called "FISA" until the Times story treasonously spilled the beans and told them about it. Honestly, that's his argument:

These emailers [asking John how the Times story could have harmed national security] assume that al Qaeda members know about FISA. I think that is extremely unlikely. Very few Americans knew anything about FISA before the current controversy arose.

So the diabolical, unprecedentedly dangerous terrorists who pose an existential threat to the U.S. that is equal to or greater than that posed by the Soviet Union are, in John’s mind, so uninformed, unsophisticated and stupid that they never heard of or knew about the 30-year old public law that defines the powers of the U.S. Government to engage in surveillance for foreign intelligence purposes. They never heard of FISA or knew anything about it until the Times published its story.

And now the cat is out of the bag – now, thanks to the Times, they know that we have this law called "FISA" and have become aware that we do this thing called "eavesdropping" and now they will be able to thwart us. Is that supposed to be satire?

Recognizing that this may not be the most persuasive argument ever, John has a back up just in case the terrorists had heard of FISA. He argues that if the terrorists had heard of FISA, they were intimately familiar with how the FISA court worked. Thus, prior to the Times story, terrorists would have thought that it took a long time to obtain a warrant in order to listen in on their conversations when, in reality, as they now know (thanks to the Times), we were violating FISA and therefore able to eavesdrop immediately:

If the terrorists did know about FISA, they probably also knew that it would take days, weeks or months to obtain a FISA order. Thus, while they probably would be smart enough to realize that the cell phones they had used to try to contact their confederate were compromised and should be discarded, they would not realize that we had the ability to begin intercepting messages coming in to the captured cell phone almost immediately, and then begin intercepting messages to and from the phones that were calling the terrorist, also almost immediately.

This paragraph reveals an astounding ignorance. Anyone who has paid even the most minimal attention to this matter – let alone someone who holds themselves out as some sort of legal scholar qualified to accuse people of treason – has known for quite some time that FISA expressly allows immediate eavesdropping without a warrant under Section 1805. Thus, unless a terrorist were as confused and uninformed about the law as John still is, a terrorist who thought we were complying FISA (rather than violating it) would have already known that we could eavesdrop immediately and without a warrant. That's because FISA says in clear and unambiguous language that we can. The Times story reporting on Bush's illegal program didn't reveal that we could eavesdrop immediately because the Government has that power even if it complies with FISA.

Shouldn’t this be extremely embarrassing to John? FISA is not really that long of a law, and it’s pretty straightforward. It’s been three weeks since this scandal began. He obviously has no idea what FISA even says. John could have made the argument he just made only if he was completely unaware of the fact that FISA itself allows immediate eavesdropping – a fact which not only is readily apparent from the law, but also has been mentioned by pretty much everyone who has discussed this matter since it first arose.

This really is the level of argument which is coming from Bush followers on this issue. It is wildly incoherent and uninformed. That’s because they begin with the premise that anyone who says anything that is harmful to George Bush, particularly with regard to his terrorism policies, is a subversive and a traitor, and only thereafter, in each individual case, do they go out in search of rationale to justify the accusation. The fact that none exists doesn’t stop them, or even give them pause, in insisting that those who criticize or impede George Bush should be imprisoned.

And as I've pointed out before, while the Times story told the terrorists nothing about our intelligence-gathering methods, George Bush -- in order to get re-elected and then to argue for renewal of the Patriot Act -- has revealed ample information, in detail, about all the ways we are successfully monitoring and tracking their communications and their movements.

And it's always worth noting that all of this is independent of this question: if George Bush were violating criminal law in ordering this FISA-bypass program, should the Times have informed the public about it? Does George Bush have the right to violate the law if he decides doing so strengthens U.S. national security? Those are questions Bush followers never address, but does anyone need to hear them address them in order to know their answers?

UPDATE: In an update to his post, John posts an e-mail from a reader who sets forth a completely different explanation: that all of these disclosures about our "encryption" and "switching" technologies signal to the terrorists how to avoid detection. It's no wonder that John's e-mailer is a fan of Powerline since he has simply invented facts to have an argument.

The Times story revealed nothing about encryption or switching, only that eavesdropping was being conducted without the judicial oversight required by FISA. Moreover, as the e-mailer himself acknowledges, both encryption and switching technologies have been publicly discussed for years. They are hardly new. Multiple reports have indicated that Al Qaeda long ago realized that they cannot safely rely on telecommunications and rely on other methods, such as couriers, for transmission of their messages. And George Bush's speeches, as noted above, have revealed far more details about our surveillance programs.

Finally, and it is this point which is always dispositive, if new technologies were created which made FISA oversight infeasible, the solution in a society which lives under the rule of law is to amend FISA, not to secretly and repeatedly violate it.

UPDATE II: In Comments, Jukeboxgrad makes a very compelling, perhaps irrefutable, demonstration that Powerline's failure ever to acknowledge FISA's 72-hour warrantless window is deliberate and dishonest. They have repeatedly argued that Bush was justified in by-passing FISA on the ground that there is sometimes a need to eavesdrop immediately (i.e., without having time to obtain a FISA warrant), but they have never once disclosed to their readers that FISA expressly permits eavesdropping for 72 hours without a warrant. That sort of argument is not just misleading, but outright deceitful.

Jukeboxgrad makes another excellent observation in a different Comment as well.

Finally, in light of the intellectually bankrupt pro-Bush argument by Powerline featured here, it's only fair that I acknowledge this very well-crafted argument by Doctor Biobrain made in defense of Bush.

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