Update at End

The big news for the NY Times over the past few years was their treasonous exposure of the fact that the USA no longer threw away leads about possible terrorists operating in America. In a single sentence that is what the FISA-NSA issue is about when you strip away all the partisan haze. To understand the treasonous nature of the NY Times actions one has to appreciate how the NY Times got the story wrong! The NY Times, apparently being manipulated by partisans on the inside of Congress and the FIS Court, did not understand what they were covering and were apparently duped into thinking a crime was being committed when there was no crime. After years of coverage on this story 20-20 hindsight is pretty damn good, even though much of the details remain classified.

If you know telecommunications (like I do), then you can easily figure out what is possible and how things must work. There are certain steps that have to happen in a specific order. You can’t take the tire off and then jack up the car. So it was clear to some of us from the beginning the NY Times was needlessly exposing a critical national defense program because they did not understand what they were talking about. Today the NY Times reporters try and defend the defenseless. Instead of looking back and realizing the story was wrong in its assumptions and claims, they try and wrap themselves in the mantle of the do-gooders here to save humanity. Well, I am going to set the record straight if I can, since technically naive reporters have time and time again lost the essence of stories and have instead come out with wild and unfounded accusations because their ignorance is so easily manipulated by others with agendas.

[This is a long fisking]

The Truth Of The Matter

Prior to 9-11 the NSA monitored our enemies communications. Always had – that is its purpose to exist and over the years it had become incredibly good at it. If you think the computing power on your desk is impressive, realize most advances in computer capabilities come out of national defense efforts – and they are 10-20 years ahead of what is on the store shelves today. But one thing was very important in the NSA world. When it monitors a Target (and I use that term with purpose) it sweeps up everything coming and going to the Target (and over many mediums like phones, emails, etc). All those communications are between the Target and a Contact (and I use that term with purpose as well to distinguish from the Target). But you have to gather the communications to know who are the Contacts – you collect based on the Target’s ID (for packets it is source or destination ID depending which way the data is going). To know anything about the Contact you have to get to data and look up the Contact’s source or destination ID and see where it is located (US or outside). This is an immutable fact of communications in the digital age. And it is critical to getting the story right or wrong – which we all now know the NY Times got badly wrong.

In nearly all surveillance activities legal authority is provided on the Target, but the Contacts get swept up into it when they are in communications with the Target (all other communications for the Contact are not allowed to be monitored). There was one exception to this rule prior to 9-11 – the NSA could not retain or pass on details on Contacts that were located in the US that were communicating with Targets overseas. To know where the Contact is you have to trace back from the intercepted communications. To know where the other end is you have to find it. This is how it has been for decades prior to 9-11. This did not change after 9-11. p>

I know this to be the case because during my research on this story I found something in the congressional record from the days when the FISA statutes were being created. And the process was laid out clearly for all to see (from 1976):

4. “Incidental” Intercepts of Americans’ Communications

Although NSA does not now target communications of American citizens, groups, or organizations for interception by placing their names on watch lists, other selection criteria are used which result in NSA’s reviewing many communications to, from, or about an American. The initial interception of a stream of communications is analogous to a vacuum cleaner: NSA picks up all communications carried over a specific link that it is monitoring. The combination of this technology and the use of words to select communications of interest results in NSA analysts reviewing the international messages of American citizens, groups, and organizations for foreign intelligence.

The interception and subsequent processing of communications are conducted in a manner that minimizes the number of unwanted messages. Only after an analyst determines that the content of a message meets a legitimate requirement will it be disseminated to the interested intelligence agencies. In practically all cases, the name of an American citizen, group, or organization is deleted by NSA before a message is disseminated.

Internal NSA guidelines ensure that the decision to disseminate an intercepted communication is now made on the basis of the importance of the foreign intelligence it contains, not because a United States citizen, group, or organization is involved. This procedure is, of course, subject to change by internal NSA directives.

Two things to note here. First, these NSA procedures are open for the NSA to adjust – so Bush had authority in this area. Second, the NSA has to analyze the message to see if it is of any value – i.e., poses a threat to national security. If not it is tossed away. If it is then the next step, prior to 9-11, was to delete all information that could lead authorities to the person in country for further investigation. Prior to 9-11 if Atta was on the phone with Bin Laden and Bin Laden said “execute the attack” then only the part of the intercept dealing with the attack order could be disseminated beyond the gates of NSA. No information on where to find the person given the attack order, the name of the phone or email account used, nothing to stop the attack could be shared. This is the idiocy Bush fixed after 9-11. He allowed the NSA to provide the complete picture of the potential threat to the FBI. Nothing on the NSA side regarding monitoring changed. Nothing.

General Hayden (now head of CIA, then head of NSA) has admitted on the record that we did have intercepts on the 9-11 highjackers once they were in country, but as you can see from the guidelines outlined in the Congressional Record above the alert on where to look and who to investigate never went out.

On January 23rd, General Michael Hayden spoke to the National Press Club in Washington, D.C.
…
Hayden informed us that his office has been operating under an executive order (EO#12333 from 1981) that gave the NSA the tools it is currently using — meaning the NSA wasn’t suddenly unleashed to go marauding every American’s privacy by George W. Bush.
…
“I [Hayden] testified in open session to the House Intel Committee in April of the year 2000. At the time, I created some looks of disbelief when I said that if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.”
…
He admits that we knew that Mohamed Atta and his crew were in the US. But he says that “we did not know anything more” because prior to 9/11 “Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA “.

Hayden confirms (again) that nothing changed regarding how the NSA collects information, so there are no reasons for lawsuits or investigations or hand wringing related to the gathering of this information because of the changes since 9-11. The NSA surveillance operations remain the same today as before, it is what they do with what they find that changed. What actually changed after 9-11 is the recalcitrant FIS Court, which up until then refused to accept any surveillance request from the FBI that was initiated by an NSA lead, were now to accept leads that were initiated by the NSA and followed up by the FBI. Under the new rules a future 9-11 was less likely to happen because the NSA would not throw away the key information on finding an identifying the possible terrorist in our midsts, planning to kill us, our families and our neighbors. Now the FIS Court would have to review these leads. We know this is true again because of reporting on statements by the FIS Court judges:

The FISA court secretly grants warrants for wiretaps, telephone record traces and physical searches to the Justice Department, whose lawyers must show they have probable cause to believe that a person in the United States is the agent of a foreign power or government. Between 1979 and 2004, it approved 18,748 warrants and rejected five.

…

So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.

…

According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.

The last paragraph clearly states is the NSA lead alone cannot be used to gain a FIS Court warrant. Therefore all the claims about NSA going to the FIS Court for warrants are the rantings of the uninformed. An NSA lead cannot, but itself, provide probable cause for a FIS Court warrant. Not in 72 hours or in 72 years. The NSA continues to sweep up communications with the Target, but cannot eavesdrop on any Contacts outside what they do with the Target overseas until a warrant is gained from the FIS Court.

Even so, the FIS Court fought the changed relationship with NSA because of legal theory, not security and not to protect Americans from attack. The theology of protecting Americans civil rights had become so warped your right to privacy overshadowed your right to life, liberty and the pursuit of happiness. The scales of justice were way out of whack. But the compromise worked, until someone exposed it AND spun it to the media as something else.

The Bumbling NY Times

So, that is the reality of what actually transpired inside the NSA and FIS Court. Now let’s review the early reporting and how it was wrong so we can get to the lame excuses the NY Times reporters are floating out there today. The initial report was about the NSA bypassing the FIS Court. It was a lie created by either the NY Times, their sources inside the government, or both that claimed the NSA was not getting warrants when it intercepted a Contact in communication with a Target. Here is how the NY Times breathlessly got the story wrong from the beginning:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Lead sentence – and dead wrong. The Bush authorizations was not on gathering intel, it was being swept up has it always had been. The changes were on what could be retained and passed on to the FBI and FIS Court for making those contacts in the US actual Targets under FIS Court approved warrants. This wild-eyed and completely wrong claim by the NY Times reporters is what made the story newsworthy and defensible. The fact it has not been proven out means the story is not defensible. And they should have known it was wrong because they note in the story that to really monitor people in the US detected communicating with these overseas targets required a FIS Court warrant:

The agency, they said, still seeks warrants to monitor entirely domestic communications.

What else do we need as proof the claims were wrong? The story itself says to eavesdrop on Americans (make them a Target and not a Contact) requires a warrant. How inflated can the NY Times make this? If you contact or are contacted by a terrorist (say Bin Laden himself) the NSA will pick up that communications. How hard is this for people to grasp? Now, after 9-11 the FBI would be told about who or where the Contact in the US is, so they can investigate these Contacts and build a case for a FIS Court warrant – as required. But that is the change, that is the true essence of the story.

Did everyone agree with this cultural change? No. But that disagreement (or more accurately a denial the world they once believed in was so dangerously wrong) does not give people the right to break the laws and take the security of this nation into their own hands. The NY Times has a list of people who used their positions of knowledge for political gain, and not to defend this nation. And it is a big list:

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency’s new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

As I said I suspected this story was all wrong from the beginning, because I knew you had to capture and analyze content, source and destination of communications in this digital age to determine risk and locations of the end points. I knew someone had to see the data to determine whether it was in the US and should be handled differently. In fact the story gave away a hint that was obvious, at least to those of us who could work out the general steps of the process, that the story was misleading at best:

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

To ‘taint’ something means to add impurities. Clearly the judge (who is high on the list of those who possibly talked to the NY Times and exposed this important program) was upset that the rules had changed. He was not happy that NSA leads were now a part of the basis of FIS Court warrants. From my side I say too bad, leave and keep your mouth shut as you promised in taking your oath. It was this one line that indicated to me the story was pure garbage, so all the claims surrounding the story were garbage as well.

This discomfort being reported by the NY Times is likely a ruse, a cover for creating a partisan headache for President Bush. We know Rockefeller and others planned to plant stories in the media harmful to Bush (which also ended up being harmful to this nation). It is just hard to see the outrage over this subject being real when we now actually follow leads the NSA sees regarding possible terrorists in the USA and get FIS Court warrants when needed. Prior to 9-11 all that critical information was thrown away just in case someone, someday abused the system (though no one shows how with all the safeguards in place) to listen in on a political enemy. The reality of terrorism pales in comparison to mythical bogey-men bugging political opponents. So was the outrage from their sources real? I doubt it. I find the original article to be all theatre and propaganda, as well as completely wrong (or false) in its reporting.

Reporters’ Excuses Are As Much Garbage As Their Story Was

So we finally get to it – , showing how their completely wrong story with completely wrong conclusions and claims was not really a bumbling screw up that disclosed a critical element of our national defense, but was in fact a heroic act of self sacrifice to protect humanity from the evil of George Bush. Let’s begin with the warnings they were given by the administration not to be reckless and naive:

BTW, if you want to see what changed in FISA here is a site that highlighted the changes. After you read it you have to ask “where did all those wild claims go”? They don’t show up in the law!

Update: Karl over at Protein Wisdom provides a nice review of this post and has some comments I wish to address (because I agree with him and clearly I was not clear in communicating in the post above). His first constructive criticism is this:

First, Strata suggests that — based on the NYT’s own reporting — that “to eavesdrop on Americans (make them a Target and not a Contact) requires a warrant.” But that is not really what the NYT reported. Rather, the paper reported that the NSA still sought warrants to monitor entirely domestic communications.

I think we are saying the same thing – differently. My point was when you monitor a target you can sweep up communications with entities in the US. This does not need a warrant, it happens. What I meant to say is to Target all the communications of some one in the US (as the NY Times implied) required the warrant. To eavesdrop on the totality of communications of anyone in the US still required the going to FIS Court – which is what the NY Times claimed was being ‘bypassed’. So we agree, I just think the misleading (through premeditation or ignorance) that let the NY Times claim the government was listening in (i.e., targeting) people in America. This is the crux of ‘the lie’ promulgated by the NY Times.

The second comment was this:

Strata also is a bit careless in writing that — according to reporting from the Washington Post — an NSA lead cannot, by itself, form the basis of a FIS warrant.

…

This is actually more protective of individual privacy than Strata’s characterization. According to the WaPo story, information obtained from a warrantless NSA intercept is not used at all in obtaining a FIS warrant, to eliminate any possibility that the warrant is based on the “fruit of the poisonous tree.”

Here we disagree on the interpretation – and I am confident in mine because of other similar news accounts. But the differences are meaningless to the point – you cannot use NSA developed leads or evidence to get FIS Court warrants. Which is one of the big liberal lies about FISA. We both note you cannot gain FISA warrants on NSA evidence alone.

I appreciate Karl’s post and the time I know he took reading the post (it was a looooong one). And I am certain we agree that the story by the NY Times was as much a tissue of lies and ignorance as are their excuses for exposing the story in the first place. BTW – I do augment my technical experience with legal advice from all the lawyers in the family and who are friends. I am the black sheep, the one who went on a different path.