I’m having a hard time feeling the civil liberties (faux? Fox?) outrage coming from both left and right in regards to Wednesday’s disclosure-leak about Verizon; and followed up with Thursday’s WaPo revelation:
The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.
The highly classified program, code-named PRISM, has not been disclosed publicly before.
Want to know why PalTalk is included as one of the 9 internet companies?
The real snicker should be in those who would exchange patriotism for partisanship deserve….ridicule:[youtube]http://youtu.be/_RQvKQGzcoc[/youtube]
This from the NYTimes yesterday is also amusing:
The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.
So how many of you were in alignment with Senator Obama’s criticism back then? How many of you are in agreement with President Obama’s attempts at portraying al Qaeda as being “on the run”, today?
Certainly there are those on both the left and the right who have been consistently critical of the Patriot Act and NSA surveillance, as well as the war(s) in Iraq and Afghanistan whether it’s been under a Republican president or a Democratic president. But there are also those who, like presidential candidate in the above video, are merely using this as political opportunism.
Hugh Hewitt from the right:
Count me among the non-outraged –at least with what we know so far. People serious about the war on terror have to be relieved, not outraged that the federal government is doing basic data collection. People who aren’t serious about the threat, well, they will be predictably shocked that the threat is being taken seriously.
More from Hewitt this morning, also citing Andrew McCarthy.
Data collection is not data abuse. A disease of government abuse and intimidation at the IRS, the DOJ, EPA and elsewhere throughout the executive branch does not mean that the national security agencies are rampaging through the records of American citizens compiling massive dockets with which to blackmail and control foes, friends and the simple bystanders.
It does mean that serious participants in the war on terror are constructing the walls of security necessary to stop jihadists before they devastate neighborhoods, cities or entire regions of the country.
Andrew Sullivan from the left:
“This kind of technology is one of the US’ only competitive advantages against Jihadists. Yes, its abuses could be terrible. But so could the consequences of its absence.”
(Here is Stephen Walt– also on the left side of issues- saying why Sullivan is wrong).
there are a lot of reasons to be cautious about rushing to the conclusion that it signals a massive, lawless new intrusion into Americans’ civil liberties.
Let’s start with the order. It seems to come from the court established to oversee intelligence gathering that touches the United States. Right off the bat, that means that this is not some warrantless or extrastatutory surveillance program. The government had to convince up to a dozen life-tenured members of the federal judiciary that the order was lawful. You may not like the legal interpretation that produced this order, but you can’t say it’s lawless.
In fact, it’s a near certainty that the legal theory behind orders of this sort has been carefully examined by all three branches of the government and by both political parties. As the Guardian story makes clear, Sen. Ron Wyden has been agitating for years about what he calls an interpretation of national security law that seems to go beyond anything the American people understand or would support. He could easily have been talking about orders like this. So it’s highly likely that the law behind this order was carefully vetted by both intelligence committees, Democrat-led in the Senate and Republican-led in the House. (Indeed, today the leaders of both committees gave interviews defending the order.) And in the executive branch, any legal interpretations adopted by George W. Bush’s administration would have been carefully scrubbed by President Barack Obama’s Justice Department.
Ah, you say, but the scandal here isn’t what has been done illegally — it’s what has been done legally. Even if it’s lawful, how can the government justify spying on every American’s phone calls?
It can’t. No one has repealed the laws that prohibit the National Security Agency (NSA) from targeting Americans unless it has probable cause to believe that they are spies or terrorists. So under the law, the NSA remains prohibited from collecting information on Americans.
On top of that, national security law also requires that the government “minimize” its collection and use of information about Americans — a requirement that has spawned elaborate rules that strictly limit what the agency can do with information it has already collected. Thus, one effect of “post-collection minimization” is that the NSA may find itself prohibited from looking at or using data that it has lawfully collected.
But why, you ask, would the government collect all these records, even subject to minimization, especially when Wyden was kicking up such a fuss about it? And, really, what’s the justification for turning the data over to the government, no matter how strong the post-collection rules are?
To understand why that might seem necessary, consider this entirely hypothetical example. Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, “Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I’ve told him to use a throwaway cell phone to call you tomorrow at 11 a.m. on your throwaway phone. When you answer, he’ll give you nothing other than the number of a second phone. You will buy another phone in the bazaar and call him back on the second number at 2 p.m.”
Now, this is pretty good improvised tradecraft, and it would leave the government with no idea where or who the U.S.-based operative was or what phone numbers to monitor. It doesn’t have probable cause to investigate any particular American. But it surely does have probably cause to investigate any American who makes a call to Yemen at 11 a.m., Sanaa time, hangs up after a few seconds, and then gets a call from a different Yemeni number three hours later. Finding that person, however, wouldn’t be easy, because the government could only identify the suspect by his calling patterns, not by name.
So how would the NSA go about finding the one person in the United States whose calling pattern matched the terrorists’ plan? Well, it could ask every carrier to develop the capability to store all calls and search them for patterns like this one. But that would be very expensive, and its effectiveness would really only be as good as the weakest, least cooperative carrier. And even then it wouldn’t work without massive, real-time information sharing — any reasonably intelligent U.S.-based terrorist would just buy his first throwaway phone from one carrier and his second phone from a different carrier.
The only way to make the system work, and the only way to identify and monitor the one American who was plotting with al Qaeda’s operatives in Yemen, would be to pool all the carriers’ data on U.S. calls to and from Yemen and to search it all together — and for the costs to be borne by all of us, not by the carriers.
In short, the government would have to do it.
To repeat, this really is hypothetical; while I’ve had clearances both as the NSA’s top lawyer and in the top policy job at the Department of Homeland Security, I have not been briefed on this program. (If I had, I wouldn’t be writing about it.) But the example shows that it’s not that hard to imagine circumstances in which the government needs to obtain massive amounts of information about Americans yet also needs to remain bound by the general rule that it may only monitors those whom it legitimately suspects of being terrorists or spies.
The technique that squares that circle is minimization. As long as the minimization rules require that all searches of the collected data must be justified in advance by probable cause, Americans are protected from arbitrary searches. In the standard law enforcement model that we’re all familiar with, privacy is protected because the government doesn’t get access to the information until it presents evidence to the court sufficient to identify the suspects. In the alternative model, the government gets possession of the data but is prohibited by the court and the minimization rules from searching it until it has enough evidence to identify terror suspects based on their patterns of behavior.
That’s a real difference. Plenty of people will say that they don’t trust the government with such a large amount of data — that there’s too much risk that it will break the rules — even rules enforced by a two-party, three-branch system of checks and balances. When I first read the order, even I had a moment of chagrin and disbelief at its sweep.
But for those who don’t like the alternative model, the real question is “compared to what”? Those who want to push the government back into the standard law enforcement approach of identifying terrorists only by name and not by conduct will have to explain how it will allow us to catch terrorists who use halfway decent tradecraft — or why sticking with that model is so fundamentally important that we should do so even if it means more acts of terrorism at home.
Is there a tradeoff between civil liberties and national security? Sure. But have we crossed a threshold where we deserve neither? I don’t see it.
But I do see those who would sacrifice national security for civil liberties, will have neither.
Either both Bush and Obama and all those Republicans and Democrats in office who have supported this across two administrations have been consistently wrong; or they are fulfilling the federal government’s major duty: National security.
Foreign Policy Passport‘s By the Numbers:
To put that debate in perspective, here’s how PRISM stacks up by the numbers based on what we’ve learned today:
1,477: The number of times data obtained via PRISM has been cited in the president’s daily intelligence briefing.
1 in 7: The proportion of NSA intelligence reports using raw material from PRISM.
77,000: The number of intelligence reports that have cited PRISM.
2,000: The number of PRISM-based reports issued per month.
24,005: The number of PRISM-based reports issued in 2012 alone, which was a 27 percent increase from the previous year.
9: The number of tech companies whose servers NSA has access to via PRISM.
6: The number of years PRISM has been in operation.
2: The number of presidential administrations PRISM has operated under.
51 percent: The minimum confidence of a target’s “foreignness” when an NSA analyst uses PRISM.
248 percent: The increase in 2012 in the number of Skype communications intercepted via PRISM
131 percent: The increase in 2012 in PRISM requests for Facebook data.
63 percent: The increase in 2012 in PRISM requests for Google data.
$20 million: The annual cost of PRISM.
$8 billion: The estimated annual budget of the NSA.
35,000 to 55,000: The estimated number of employees at the NSA.
0: The number of times Twitter has agreed to participate in PRISM.
1: The number of ad campaigns by Microsoft, the first company to agree to participate in PRISM, in which the company declares “your privacy is our priority.”
Even more from Hugh Hewitt here, including linking to WSJ editorial.
A former fetus, the “wordsmith from nantucket” was born in Phoenix, Arizona in 1968. Adopted at birth, wordsmith grew up a military brat. He achieved his B.A. in English from the University of California, Los Angeles (graduating in the top 97% of his class), where he also competed rings for the UCLA mens gymnastics team. The events of 9/11 woke him from his political slumber and malaise. Currently a personal trainer and gymnastics coach.
The wordsmith has never been to Nantucket.