Dec 30 2005

The Issue of NSA and FISA

Published by at 11:02 am under All General Discussions,FISA-NSA

Seems like mature discussion of the actual issues is starting to arise out of the heap of rabid cries for impeachment (which I hope continue since these calls will demonstrate the lack of seriousness and immense void of proposals from the left). Hat tip to Real Clear Politics for finding many of these excellent discussions.

The first, surprisingly, comes from the Boston Globe and is by Charles Fried, who teaches Constitutional Law at Harvard. It was heartening to see such cogent points emanating from Boston again

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

This has been my point on this matter for a while now. NSA is allowed to monitor overseas communications – period. They rely more on patterns and connecting end points than they do monitoring content. I do not work in this world, but I have the math background to understand the probabilities and return on investment – which is what this game is all about in the end. Words are lousy indicators for a variety of reasons. The word ‘America’ will be used by any and all talking about some big news event involving America, but avoided by those trying to cover up any interest in America. So blanket ‘content analysis’ leads you to spend a lot of time on normal, benign discussions and little likelihood of finding anything associated with covert action.

Now take a known terrorist and his connections, and then their connections and you have a better chance of finding the core bad guys. Within this group of connections you can use content analysis to separate the wheat from the chaff. This is more likely how it is done. The idea of listening in on all the lines of communication is ridiculous, and it demonstrates a level of ignorance to the technical challenges that form of monitoring involves.

Mr. Fried has more important insights

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved — only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

What the left does not appreciate is we [probably will, as a people, not only decide this form of monitoring is just fine, but will make it legal if it is not already. Most of us were of the mind this was happening anyway! Thanks to those creative liberals in Hollywood.

If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?

The answer is no. We will not sacrifice lives needlessly to flaws in our legal structure. But I doubt it will come to that. The crux is not whether we can defend ourselves by monitoring our enemies’ communications – that is well established. It is the process we use to transition from detection to criminal prosecution when the enemy is found in our midst here in America.

Personally, I see no reason to distinguish how a fact is arrived at or its source. It is either a fact which carries weight, or a theory (what the law calls circumstantial) which requires a preponderance of support and no viable scenarios that counter that theory (what the law calls ‘beyond reasonable doubt’). The scientist in me says a fact is immutable to how it is discovered. So I could care less how we learn a person was going to blow up the Brooklyn Bridge, but if it is true the person was planning this then that is what is important. There is no ‘unfair’ in finding facts. Being tricked to tell a terrible truth does not make the truth untrue. The one exception is coercion. Truth can never come from coercion.

We need to realize a phone intercept of people plotting to kill thousands of Americans is the primary information in any criminal trial, not the method on how it was recorded. The recording cannot be faked. The conversation cannot be coerced. Beyond that there is no denying the fact criminal intent has been established as fact.

Mr. Fried has some final great questions for the left to ponder

And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?

If of all government, then we are in a state of mind that renders us incapable of defending ourselves from real threats. If of this administration, then can we afford to disarm the only government we have until the result of the next election, which is likely to be as partisan and closely divided as the last?

Very few of us are so paranoid we feel the government is evil, and therefore we are unable to protect ourselves. The government is made up of us. Well meaning for the most part, suffering human foibles and imperfections like the rest of us. The partisans who are so exasperated they cannot live until the current political reality is changed through our cherished electoral processes are the ones who can be safely ignored. The unrealistic, selfish desires of a few are not worthy of our national attention.

Tony Snow has a more humorous take on the whole FISA-NSA issue

The White House Social Office needs to note right now, before anybody has a chance to forget, that it really must send flowers, chocolates and wall-sized Christmas cards (um, holiday cards) next year to James Risen and Eric Lichtblau of The New York Times.

The intrepid duo saved the Bush presidency recently by breaking news that the National Security Agency has been conducting surveillance of al-Qaida operatives abroad and their minions in the United States.

Yet as opponents grimaced and gathered, curious and unexpected things happened. The president’s poll ratings rose, as did public support for the supposedly controversial operation.

This is not surprising. As we pointed to in a previous post, many make the connection between monitoring Al Qaeda and monitoring the Nazis and Japanese during WW II. And there is a good reason why people make this obvious connection:

Where I disagree with Tony Snow is where he suggest Bush should ask permission from Congress

the president ought to open his State of the Union Address by asking Congress to give him official authority to approve warrantless searches of known and identified terrorists, or of people in regular contact with those terrorists whom authorities reasonably suspect of plotting to commit acts of murder, terror or sabotage.

Bush doesn’t need to ask for what the Constitution provides has Presidential powers. I would dare Congress or the Courts to try and take it away from Bush. But I would not ‘ask’ Congress for anything – publicly.

The NSA and FISA have been around a long time. NSA and its precursors are the much more senior entity. We simply need to make sure these two assets work well together and produce the results we want: terrorist attacks avoided, terrorists and their cohorts in jail (if they are found here in the US) fulfilling their sentences.

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