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, August 12, 2006

Legal surveillance, not illegal eavesdropping, stopped the U.K. terrorist attacks

(updated below)

As I noted on Thursday, Bush supporters have been attempting to exploit the U.K. terrorist plot to bolster support for an array of extremist and lawless Bush policies -- from warrantless eavesdropping to torture -- even though there is not a shred of evidence that any of those policies played any role whatsoever, either in the U.S. or England, in impeding this plot.

Within hours of disclosure of the plot, Cliff May was over in National Review crowing that this plot demonstrated the need for warrantless eavesdropping and indefinite detentions, and yesterday, the Wall St. Journal published an editorial strongly insinuating -- with no reasoning (and no facts) whatsoever -- that Bush's most controversial policies were necessary to stop the attacks from proceeding:

Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs . . . .

Surveillance? Hmmm. Democrats and their media allies screamed bloody murder last year when it was leaked that the government was monitoring some communications outside the context of a law known as the Foreign Intelligence Surveillance Act. FISA wasn't designed for, nor does it forbid, the timely exploitation of what are often anonymous phone numbers, and the calls monitored had at least one overseas connection. But Mr. Reid labeled such surveillance "illegal" and an
"NSA domestic spying program." Other Democrats are still saying they will censure, or even impeach, Mr. Bush over the FISA program if they win control of Congress

It is hard to know where to begin in demonstrating the sheer falsity of these arguments. First, most of the surveillance of the terrorist plotters was conducted by British law enforcement. British law requires the issuance of warrants before telephone conversations can be intercepted, and every warrant must "name or describe either one person as the Interception Subject, or a single set of premises where the interception is to take place." Being able to eavesdrop only with warrants did not prevent British law enforcement from stopping these terrorist attacks. It is baffling, to put it mildly, why defenders of Bush's illegal eavesdropping would think that any of this bolsters their defense that warrantless eavesdropping is necessary.

Even more significantly, to the extent that U.S. law enforcement agents attempted to assist in the pre-arrest surveillance of these terrorists, they were able to eavesdrop on the conversations of scores of individuals inside the U.S. by obtaining the approval of the FISA court, just as the law requires:

In the days before the alleged airliner bombing plot was exposed, more than 200 FBI agents followed up leads inside the United States looking for potential connections to British and Pakistani suspects. The investigation was so large, officials said, that it brought a significant surge in warrants for searches and surveillance from the Foreign Intelligence Surveillance Court, the secret panel that oversees most clandestine surveillance.

One official estimated that scores of secret U.S. warrants were dedicated solely to the London plot. The government usually averages a few dozen a week for all counterintelligence investigations, according to federal statistics.

The purpose of the recent warrants included monitoring telephone calls that some of the London suspects made to the United States, two sources said.

From the very beginning of the NSA scandal, this has been the point -- the principal, overarching, never-answered point. There is no reason for the Bush administration to eavesdrop in secret, with no judicial oversight, and in violation of the law precisely because the legal framework that has been in place for the last 28 years empowers the government to eavesdrop aggressively on all of the terrorists they want, with ease.

This fact, yet again, demonstrates the sheer dishonesty motivating those right-wing pundits claiming that "Democrats" oppose the type of eavesdropping used to stop this plot. Legal eavesdropping, within the FISA framework, is exactly the eavesdropping which Bush critics advocate, and it was precisely that legal eavesdropping which was used to engage in surveillance of suspected terrorists here.

Additionally, The Wall St. Journal is simply incoherent when it says that "Other Democrats are still saying they will censure, or even impeach, Mr. Bush over the FISA program if they win control of Congress." This claim just makes no sense. Nobody opposes "the FISA program." Bush critics want aggressive eavesdropping within the "FISA program." The censure of the President has been proposed because of the President's eavesdropping outside of the FISA program -- i.e., outside of the law. Does The Wall St. Journal Editorial Board really not understand that most basic point? Why are they falsely telling their readers that Democrats oppose "the FISA program" -- as though Democrats oppose eavesdropping itself?

Let us emphasize one last point. In their zeal to imprison Jim Risen and the New York Times editors responsible for disclosure of the NSA warrantless eavesdropping program, Bush followers continuously claimed that this disclosure somehow alerted terrorists to the fact that we were eavesdropping on their conversations (as though they were not aware of that before) and that, as a result, we have now lost the ability to monitor their conversations. Now that they know we are eavesdropping, so this "reasoning" goes, they will not use telephones to talk to each other any more.

And yet, here was a major plot foiled because the terrorist plotters were using telephones to communicate about their plans -- and using banking systems to wire money -- all of which law enforcement could track within the law. This whole episode potently illustrates just how inane are the claims that the Times' NSA story (and its SWIFT disclosures) would endanger national security. Terrorists already knew full well that we monitor their telephone conversations and banking transactions, and they knew that before the New York Times "told" them so. But in order to plan terrorist attacks, terrorists must communicate with one another and send money to each other. Somehow, the Times' story did not prevent us from eavesdropping on all of these conversations. That's because the Times stories -- as has been evident from the beginning -- told terrorists nothing which they could use to avoid detection.

Only Bush followers could point to a successful law enforcement operation which, by all appearances, complied with the law, and try to use it to argue how necessary it is that the law be broken. That is the central myth at the heart of the Bush desire for increased authoritarian measures -- that there is a forced choice between protection from terrorist threats and the rule of law.

That is a false choice. We can be a country which lives under the rule of law and which effectively battles terrorism -- just as we were a country which lived under the rule of law (including FISA) as we battled communism and a whole array of other external threats. Despite the bizarre effort by Bush followers to use this U.K. plot to argue for the need for the President to break the law, it actually demonstrates precisely the opposite.

UPDATE: Atrios links to this post by Scott Lemieux that responds to the WSJ editorial, and Scott, in turn, links to (and quotes from) this post by Spencer Ackerman at TNR's Plank, in which Ackerman asserts -- with no citation or link -- that "British investigators, in all cases, have to obtain and comply with court-issued warrants for any surveillance" (emphasis added).

My understanding (and I could be wrong) is that this is inaccurate. British investigators are required to obtain warrants, but not ones issued by a court. Instead, eavesdropping is authorized through a process within the British Home Secretary -- the rough British equivalent of the U.S. Justice Department.

The important point is that the British were able to stop this plot while complying with the law and obtaining warrants -- and, more importantly, American investigators were able to eavesdrop on suspected terrorists, including those communicating with U.S. persons, within the FISA framework. But I believe (again, without being certain) that it's inaccurate to say that British law requires court-issued warrants for eavesdropping.

UPDATE II: As John Amato noted on Thursday, even Bill O'Reilly acknowledged that "warrants were obtained for this by the FISA court" for the U.S. part of the surveillance (but then nonetheless still tried to prod Michael Chertoff into saying that this was a "big win politically for you guys" on the NSA issue). But readers of the Wall St. Journal, or National Review, and Powerline have all been misled into believing that the President's warrantless surveillance program was used to thwart this plot.

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