Re: Surveillance Net Yields Few Suspects
- From: "John P. Mullen" <jomullen@xxxxxxxxxx>
- Date: Sun, 05 Feb 2006 15:32:12 -0700
Jack Linthicum wrote:
Jack Linthicum wrote:
For "most" you can probably read "all", article trimmed to benefit
those who don't read. Jon Stewart pointed out, in an interview with the
author of one of those books on how the government and business are
profilling you through how you shop, etc, that the profiles are almost
always wrong.
Bush has recently described the warrantless operation as "terrorist
surveillance" and summed it up by declaring that "if you're talking to
a member of al Qaeda, we want to know why." But officials conversant
with the program said a far more common question for eavesdroppers is
whether, not why, a terrorist plotter is on either end of the call. The
answer, they said, is usually no.
Fewer than 10 U.S. citizens or residents a year, according to an
authoritative account, have aroused enough suspicion during warrantless
eavesdropping to justify interception of their domestic calls, as well.
That step still requires a warrant from a federal judge, for which the
government must supply evidence of probable cause.
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373_pf.html
Surveillance Net Yields Few Suspects
NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most
Are Later Cleared
By Barton Gellman, Dafna Linzer and Carol D. Leonnig
Washington Post Staff Writers
Sunday, February 5, 2006; A01
Intelligence officers who eavesdropped on thousands of Americans in
overseas calls under authority from President Bush have dismissed
nearly all of them as potential suspects after hearing nothing
pertinent to a terrorist threat, according to accounts from current and
former government officials and private-sector sources with knowledge
of the technologies in use.
Bush has recently described the warrantless operation as "terrorist
surveillance" and summed it up by declaring that "if you're talking to
a member of al Qaeda, we want to know why." But officials conversant
with the program said a far more common question for eavesdroppers is
whether, not why, a terrorist plotter is on either end of the call. The
answer, they said, is usually no.
Fewer than 10 U.S. citizens or residents a year, according to an
authoritative account, have aroused enough suspicion during warrantless
eavesdropping to justify interception of their domestic calls, as well.
That step still requires a warrant from a federal judge, for which the
government must supply evidence of probable cause.
The Bush administration refuses to say -- in public or in closed
session of Congress -- how many Americans in the past four years have
had their conversations recorded or their e-mails read by intelligence
analysts without court authority. Two knowledgeable sources placed that
number in the thousands; one of them, more specific, said about 5,000.
The program has touched many more Americans than that. Surveillance
takes place in several stages, officials said, the earliest by machine.
Computer-controlled systems collect and sift basic information about
hundreds of thousands of faxes, e-mails and telephone calls into and
out of the United States before selecting the ones for scrutiny by
human eyes and ears.
Successive stages of filtering grow more intrusive as artificial
intelligence systems rank voice and data traffic in order of likeliest
interest to human analysts. But intelligence officers, who test the
computer judgments by listening initially to brief fragments of
conversation, "wash out" most of the leads within days or weeks.
The scale of warrantless surveillance, and the high proportion of
bystanders swept in, sheds new light on Bush's circumvention of the
courts. National security lawyers, in and out of government, said the
washout rate raised fresh doubts about the program's lawfulness under
the Fourth Amendment, because a search cannot be judged "reasonable" if
it is based on evidence that experience shows to be unreliable. Other
officials said the disclosures might shift the terms of public debate,
altering perceptions about the balance between privacy lost and
security gained.
Air Force Gen. Michael V. Hayden, the nation's second-ranking
intelligence officer, acknowledged in a news briefing last month that
eavesdroppers "have to go down some blind alleys to find the tips that
pay off." Other officials, nearly all of whom spoke on the condition of
anonymity because they are not permitted to discuss the program, said
the prevalence of false leads is especially pronounced when U.S.
citizens or residents are surveilled. No intelligence agency, they
said, believes that "terrorist . . . operatives inside our country," as
Bush described the surveillance targets, number anywhere near the
thousands who have been subject to eavesdropping.
Contributors to the technology said it is a triumph for artificial
intelligence if a fraction of 1 percent of the computer-flagged
conversations guide human analysts to meaningful leads.
Those arguments point to a conflict between the program's operational
aims and the legal and political limits described by the president and
his advisers. For purposes of threat detection, officials said, the
analysis of a telephone call is indifferent to whether an American is
on the line. Since Sept. 11, 2001, a former CIA official said, "there
is a lot of discussion" among analysts "that we shouldn't be dividing
Americans and foreigners, but terrorists and non-terrorists." But under
the Constitution, and in the Bush administration's portrait of its
warrantless eavesdropping, the distinction is fundamental.
Valuable information remains valuable even if it comes from one in a
thousand intercepts. But government officials and lawyers said the
ratio of success to failure matters greatly when eavesdropping subjects
are Americans or U.S. visitors with constitutional protection. The
minimum legal definition of probable cause, said a government official
who has studied the program closely, is that evidence used to support
eavesdropping ought to turn out to be "right for one out of every two
guys at least."
Hayden said the government goes to the intelligence court when an
eavesdropping subject becomes important enough to "drill down," as he
put it, "to the degree that we need all communications."
Yet a special channel set up for just that purpose four years ago has
gone largely unused, according to an authoritative account. The annual
number of such applications, a source said, has been in the single
digits.
According to surveys by TeleGeography Inc., nearly all voice and data
traffic to and from the United States now travels by fiber-optic cable.
About one-third of that volume is in transit from one foreign country
to another, traversing U.S. networks along its route. The traffic
passes through cable landing stations, where undersea communications
lines meet the East and West coasts; warehouse-size gateways where
competing international carriers join their networks; and major
Internet hubs known as metropolitan area ethernets.
One high-ranking intelligence official who argued for a more cautious
approach said he found himself pushed aside. Awkward silences began to
intrude on meetings that discussed the evolving rules.
<more>
Addition from the NY Times Magazine, please note how these two items
hang together by reading the parenthetical passage in the second
paragraph. The original in the printed version of the Magazine has a
graph showing the 4 denials of requests for electronic surveillance in
the past 5 years, out of 6650 total requests. For all of you who
believe the President can do anything, please read the last paragraph
and remember this is a lawyer writing and you are not either a lawyer
or a constitutional expert, only the village idler.
February 5, 2006
The Way We Live Now
Deliberation Nation
By NOAH FELDMAN
The public hearings that the Senate Judiciary Committee is scheduled to
begin holding tomorrow are supposed to help determine whether the
National Security Agency's domestic spying program broke the law. But
this is no ordinary trial. Although lawyers will abound and oaths will
be administered, there will be no prosecutors or judges, and there are
as yet no defendants, no one charged with a specific legal violation.
Instead, a profusion of statutes, case law and constitutional
provisions surrounds and obscures the issue. The committee will try to
shed light on the question of legality, but it won't be easy. We are in
the midst of a once-in-a-decade constitutional weather pattern - what
you might call a fog of law.
The main reason that the issue before the committee looks so confusing
is, paradoxically, that the facts are basically settled. The Bush
administration has acknowledged ordering the N.S.A. to listen to
conversations between people in the United States and suspected
terrorists abroad without getting warrants first. (It would be
fascinating to know whose conversations were overheard and how many
wiretaps proved useful, but the answers to such inquiries may be
classified, and a public accounting is unlikely.) This leaves the legal
status of the listening-in as the most likely topic of conversation,
and maybe the only one.
The Foreign Intelligence Surveillance Act of 1978 requires warrants for
eavesdropping on conversations involving anyone in the United States
- so on the face of things, it looks as if the domestic spying
program violated the law. Yet the administration argues that another
law, the Sept. 18, 2001, Authorization for Use of Military Force,
superseded FISA: by giving the president the power to make war against
Al Qaeda and its supporters, the argument goes, the law implicitly
authorized the customary activities of war, including a wide variety of
intelligence gathering. When challenged on this point, the
administration's next line of defense is the Constitution: the
president's responsibility as commander in chief and his executive
power over foreign affairs are said to entail the authority to listen
to conversations across borders that are relevant to national security.
In a final constitutional twist, critics of the administration argue
that the Fourth Amendment to the Constitution guarantees the people the
right to be secure from unreasonable searches and seizures, perhaps
including warrantless wiretaps.
This morass of competing legal authorities practically begs for an
organizing framework. The senators on the judiciary committee are
likely to make repeated reference to Justice Robert H. Jackson's
canonical concurring opinion in Youngstown Sheet and Tube Company v.
Sawyer - the 1952 Supreme Court decision holding that President
Truman lacked authority to seize the nation's steel mills in order to
prevent a labor strike that threatened arms production for the Korean
War. According to the system that Jackson laid out, when Congress has
expressly authorized the president to act, "his authority is at its
maximum." When Congress has expressly or implicitly told him not to
act, then "his power is at its lowest ebb." In between is when Congress
is silent - what Jackson memorably called the "zone of twilight." In
this situation, the status of presidential action is uncertain and is
therefore likely to be decided not by law but by political
circumstances and practical considerations.
In the case of the N.S.A.'s domestic spying program, the debate about
statutory and constitutional authority threatens to create a twilight
zone of its own. No one seems to think that Congress has been silent;
on the contrary, it has either flatly banned the eavesdropping or
implicitly authorized it. The confusion is making the debate as much a
political contest as a legal one. It is here that the committee
hearings become most relevant. Congress does not decide actual legal
cases, but it has a critical role to play in shaping public
deliberation, which in the end may be just as legally influential. By
debating what the N.S.A. has done in pursuing security at the expense
of privacy, the senators can put before the public the question of how
we ought to strike that delicate balance far better than unelected
judges could. The specter of the hearings has already driven the Bush
administration to start arguing that the FISA rules were inadequate to
meet new, post-9/11 threats. Whether this is true - and whether the
right constitutional solution was for the president to change the rules
by fiat, instead of by asking Congress for permission - is an issue
that needs to be discussed.
The Senate is sometimes derided as a mere debating chamber, but in this
case, debate is exactly what we need. For the last five years, with a
Republican-controlled Congress, Americans have not been exposed to
serious Congressional debate on any major issue, let alone how far the
executive branch may go in protecting our security. These hearings -
called by a Republican, Senator Arlen Specter - will afford us the
first major opportunity to hear and (via our representatives) air
legitimate concerns about whether the president has gone too far.
Furthermore, the committee's debate will have an indirect effect on the
courts. When the eavesdropping issue finally does come before a court
- as it seems likely to by one route or another; two civil rights
groups recently filed lawsuits against the administration over its
domestic spying program - the judges who address it will be aware of
what happened in the hearings and of the public debate surrounding
them.
Debate should, of course, ultimately lead to action. Lawmakers cannot
reverse wrongdoing that has already occurred. But they can express
outrage (in a resolution or on the floor) that the president saw fit to
usurp Congress's power to set the ground rules for secret surveillance.
Alternatively, Congress could pass legislation invalidating the
executive order authorizing the eavesdropping and thus set the stage
for a potential constitutional battle that would move to the courts.
Another option would be for Congress to conclude that new laws actually
are needed for the war on terror - but it could pass those laws
itself instead of letting the president make them up as he goes along.
Even though Congress lacks the courts' authority to say what the law
is, it can still cast a ray of light through the legal fog.
Noah Feldman, a contributing writer, is a law professor at New York
University.
Well, that is one aspect.
However, this practice opens up other cans of worms. For example, We already have one case in which a defendant is claiming the government has and is not revealing information obtained during warrantless searches which point to his innocence. If the government could say that no monitoring was done without a warrant, it would be a simple thing for the courts to check for any any all warrants that could be involved. However, when the government conducts warrantless searches it is much more difficult to convince a judge that it is not holding back evidence. This, in itself, could lead to reasonable doubt.
That is, regardless of its legality or lack of same, this practice may prove to be counterproductive and actually reduce the ability of the government to protect its citizens.
.
- References:
- Surveillance Net Yields Few Suspects
- From: Jack Linthicum
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