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Thursday, January 05, 2006

Tinker, Tailor, Miner, Spy

Why the NSA's snooping is unprecedented in scale and scope.

Fifty years ago, officers from the Signal Security Agency, the predecessor to the National Security Agency, visited an executive from International Telephone and Telegraph and asked for copies of all foreign government cables carried by the company. The request was a direct violation of a 1934 law that banned the interception of domestic communications, but Attorney General Tom Clark backed it. Initially reluctant, ITT relented when told that its competitor, Western Union, had already agreed to supply this information. As James Bamford relates in his book The Puzzle Palace, the government told ITT it "would not desire to be the only non-cooperative company on the project." Codenamed Shamrock, the effort to collect cables sent through U.S.-controlled telegraph lines ultimately involved all the American telecom giants of the era, captured private as well as government cables, and lasted nearly 30 years. Like other illegal Cold War domestic snooping programs —such as the FBI's wiretaps without warrants and the CIA's mail-opening operations—it collapsed under the weight of public reaction to the abuses of executive power revealed by Vietnam and Watergate.

Today's generation of telecom leaders is similarly involved in the current controversy over spying by the NSA. The New York Times reported in December that since 9/11, leading telecommunications companies "have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists." Citing current and former government and corporate officials, the Times reported that the companies have granted the NSA access to their all-important switches, the hubs through which colossal volumes of voice calls and data transmissions move every second. A former telecom executive told us that efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source, who asked not to be identified so as not to out his former company, reports that the NSA approached U.S. carriers and asked for their cooperation in a "data-mining" operation, which might eventually cull "millions" of individual calls and e-mails.

Like the pressure applied to ITT a half-century ago, our source says the government was insistent, arguing that his competitors had already shown their patriotism by signing on. The NSA would not comment on the issue, saying that, "We do not discuss details of actual or alleged operational issues."

The magnitude of the current collection effort is unprecedented and indeed marks a shift in how the NSA spies in the United States. The current program seems to involve a remarkable level of cooperation with private companies and extraordinarily expansive data-mining of questionable legality. Before Bush authorized the NSA to expand its domestic snooping program after 9/11 in the secret executive order, the agency had to stay clear of the "protected communications" of American citizens or resident aliens unless supplied by a judge with a warrant. The program President Bush authorized reportedly allows the NSA to mine huge sets of domestic data for suspicious patterns, regardless of whether the source of the data is an American citizen or resident. The NSA needs the help of private companies to do this because commercial broadband now carries so many communications. In an earlier age, the NSA could pick up the bulk of what it needed by tapping into satellite or microwave transmissions. "Now," as the agency noted in a transition document prepared for the incoming Bush administration in December 2000, "communications are mostly digital, carry billions of bits of data, and contain voice, data and multimedia. They are dynamically routed, globally networked and pass over traditional communications means such as microwave or satellite less and less."

The agency used to search the transmissions it monitors for key words, such as names and phone numbers, which are supplied by other intelligence agencies that want to track certain individuals. But now the NSA appears to be vacuuming up all data, generally without a particular phone line, name, or e-mail address as a target. Reportedly, the agency is analyzing the length of a call, the time it was placed, and the origin and destination of electronic transmissions. Those details would be crucial in mining the data for patterns—according to the officials the Times cited, the goal of the NSA's eavesdropping system.

Pattern-based searches are most useful when run against huge sets of data. Many calls and messages must be analyzed to determine which ones are benign and which deserve more attention. With large data sets, pattern-based searching can create more nuanced pictures of the connections among people, places, and messages. Deputy Director of National Intelligence Michael Hayden, who until this year was the NSA director, recently hinted that the NSA's eavesdropping program is not just looking for transmissions from specific individuals. It has a "subtly softer trigger" that initiates monitoring without exactly knowing in advance what specific transmissions to look for. Presumably, this trigger is a suspicious pattern. But officials have not actually described any triggers, raising the question of whether the NSA has been authorized to go on such fishing expeditions.

The government experimented with large-scale pattern-based searches under the auspices of the Defense Department's Total Information Awareness program in 2002. The aim was to sift though government intelligence data, and also privately held information, for telltale signs of the planning of a terrorist attack. TIA was ridiculed as Orwellian. But at least the program tried to create new technologies to protect personal information. Adm. John Poindexter, TIA's creator, believed in the potential intelligence benefits of data-mining broadband communications, but he was also well aware of the potential for excess. "We need a much more systematic approach" to data-mining and privacy protection, Poindexter said at a 2002 conference in Anaheim, Calif., sponsored by the Defense Advanced Research Projects Agency.

Poindexter envisioned a "privacy appliance," a device that would strip any identifiers from the information—such as names or addresses—so that government miners could see only patterns. Then if there was reason to believe that the information belonged to a group that was planning an attack, the government could seek a warrant and disable the privacy control for that specific data. TIA funded research on a privacy appliance at the Palo Alto Research Center, a subsidiary of Xerox Corp. "The idea is that this device, cryptographically protected to prevent tampering, would ensure that no one could abuse private information without an immutable digital record of their misdeeds," according to a 2003 government report to Congress about TIA. "The details of the operation of the appliance would be available to the public."

The NSA's domestic eavesdropping program, however, appears to have none of these safeguards. When Congress killed TIA's funding in 2003, it effectively ended research into privacy-protection technology. According to former officials associated with TIA, after the program was canceled, elements of it were transferred into the classified intelligence budget. But these did not include research on privacy protection.

In January, Congress plans to hold hearings into the legality of the Bush administration's eavesdropping program. Lawmakers will want to know why, if the NSA cannot do its job while remaining within the legal bounds established in the 1970s, the Bush administration did not address that problem in the context of the Patriot Act. Congress might also ask why in the rush to begin data-mining, the NSA has abandoned the privacy controls planned for the TIA. As Adm. Poindexter himself noted in his resignation letter from the program in 2003, "it would be no good to solve the security problem and give up the privacy and civil liberties that make our country great."

Related in Slate

Patrick Radden Keefe argued earlier this month that the NSA has been overreaching for a while. Bruce Ackerman thinks the president's secrecy is the greatest cause for concern. Jeffrey Rosen discussed the Total Information Awareness program. Martha Baer, Katrina Heron, Oliver Morton, and Evan Ratliff explained the use of data-mining in counterterrorism. Adam Penenberg gave tips for buying online anonymity.

Shane Harris, a staff correspondent for National Journal, writes on intelligence and homeland security. Tim Naftali, the director of the Presidential Recordings Program at the University of Virginia's Miller Center of Public Affairs, is the author of Blind Spot: the Secret History of American Counterterrorism.

Shane Harris and Tim Naftali
Posted Tuesday, Jan. 3, 2006, at 6:30 AM ET

The Unrestrained President

As 2006 begins, we seem to be at a not-completely-unfamiliar crossroads in the long history of the American imperial presidency. It grew up, shedding presidential constraints, in the post-World War II years as part of the rise of the national security state and the military-industrial complex. It reached its constraint-less apogee with Richard Nixon's presidency and what became known as the Watergate scandal -- an event marked by Nixon's attempt to create his own private national security apparatus which he directed to secretly commit various high crimes and misdemeanors for him. It was as close as we came -- until now -- to a presidential coup d'etat that might functionally have abrogated the Constitution. In those years, the potential dangers of an unfettered presidency (so apparent to the nation's founding fathers) became obvious to a great many Americans. As now, a failed war helped drag the President's plans down and, in the case of Nixon, ended in personal disgrace and resignation, as well as in a brief resurgence of congressional oversight activity. All this mitigated, and modestly deflected, the growth trajectory of the imperial presidency -- for a time.

The "cabal," as Lawrence Wilkerson, Colin Powell's chief of staff at the State Department, has called Dick Cheney, Donald Rumsfeld, and various of their neoconish pals, stewed over this for years, along with a group of lawyers who were prepared, once the moment came, to give a sheen of legality to any presidential act. The group of them used the post-9/11 moment to launch a wholesale campaign to recapture the "lost" powers of the imperial presidency, attempting not, as in the case of Nixon, to create an alternate national security apparatus but to purge and capture the existing one for their private purposes. Under George Bush, Dick Cheney, and their assorted advisers, acolytes, and zealots, a virtual cult of unconstrained presidential power has been constructed, centered around the figure of Bush himself. While much has been made of feverish Christian fundamentalist support for the President, the real religious fervor in this administration has been almost singularly focused on the quite un-Christian attribute of total earthly power. Typical of the fierce ideologues and cultists now in the White House is Cheney's new Chief of Staff David Addington. The Washington Post's Dana Milbank described him this way back in 2004 (when he was still Cheney's "top lawyer"):

"[A] principal author of the White House memo justifying torture of terrorism suspects... a prime advocate of arguments supporting the holding of terrorism suspects without access to courts[,] Addington also led the fight with Congress and environmentalists over access to information about corporations that advised the White House on energy policy. He was instrumental in the series of fights with the Sept. 11 commission and its requests for information... Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president."

For these cultists of an all-powerful presidency, the holy war, the "crusade" to be embarked upon was, above all, aimed at creating a President accountable to no one, overseen by no one, and restricted by no other force or power in his will to act as he saw fit. And so, in this White House, all roads have led back to one issue: How to press ever harder at the weakening boundaries of presidential power. This is why, when critics concentrate on any specific issue or set of administration acts, no matter how egregious or significant, they invariably miss the point. The issue, it turns out, is never primarily -- to take just two areas of potentially illegal administration activity -- torture or warrantless surveillance. Though each of them had value and importance to top administration officials, they were nonetheless primarily the means to an end.

This is why the announcement of (and definition of) the "global war on terror" almost immediately after the 9/11 attacks was so important. It was to be a "war" without end. No one ever attempted to define what "victory" might actually consist of, though we were assured that the war itself would, like the Cold War, last generations. Even the recent sudden presidential announcement that we will now settle only for "complete victory" in Iraq is, in this context, a distinctly limited goal because Iraq has already been defined as but a single "theater" (though a "central" one) in a larger war on terror. A war without end, of course, left the President as a commander-in-chief-without-end and it was in such a guise that the acolytes of that "obscure philosophy" of total presidential power planned to claim their "inherent" constitutional right to do essentially anything. (Imagine what might have happened if their invasion of Iraq had been a success!)

Having established their global war on terror, and so their "war powers," in the fall of 2001, top administration officials then moved remarkably quickly to the outer limits of power -- by plunging into the issue of torture. After all, if you can establish a presidential right to order torture (no matter how you manage to redefine it) as well as to hold captives under a category of warfare dredged up from the legal dustbin of history in prisons especially established to be beyond the reach of the law or the oversight of anyone but those under your command, you've established a presidential right to do just about anything imaginable. While the get-tough aura of torture may indeed have appealed to some of these worshippers of power, what undoubtedly appealed to them most was the moving of the presidential goalposts, the changing of the rules. From Abu Ghraib on, the results of all this have been obvious enough, but one crucial aspect of such unfettered presidential power goes regularly unmentioned.

As you push the limits, wherever they may be, to create a situation in which all control rests in your hands, the odds are that you will create an uncontrollable situation as well. From torture to spying, such acts, however contained they may initially appear to be, involve a deep plunge into a dark and perverse pool of human emotions. Torture in particular, but also unlimited forms of surveillance and any other acts which invest individuals secretly with something like the powers of gods, invariably lead to humanity's darkest side. The permission to commit such acts, once released into the world, mutates and spreads like wildfire from top to bottom in any command structure and across all boundaries. You may start out with a relatively small program of secret imprisonment, torture, spying or whatever, meant to achieve limited goals while establishing certain prerogatives of power, but in no case is the situation likely to remain that way for long. This was, perhaps, the true genius of the American system as imagined by its founders -- the understanding that any form of state power left unchecked in the hands of a single person or group of people was likely to degenerate into despotism (or worse), whatever the initial desires of the individuals involved.

Sooner or later, the hubris of taking all such powers up as your own is likely to prove overwhelming and then many things begin to slip out of control. Consider the developing scandal over the National Security Agency's wiretapping and surveillance on presidential order and without the necessary (and easily obtained) FISA court warrants. In this case, the President has proudly admitted to everything. He has essentially said: I did it. I did it many times over. We are continuing to do it now. I would do it again. ("I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as our nation is -- for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.") In the process, however, he has been caught in a curious, potentially devastating Presidential lie, now being used against him by Democratic pols and other critics.

While in Buffalo, New York, for his reelection campaign in April 2004, in one of those chatty "conversations" -- this one about the Patriot Act -- that he had with various well-vetted groups of voters, the President said the following:

"There are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

By that time, as he has since admitted, the President had not only ordered the warrantless NSA wiretapping and surveillance program and recommitted to it many times over, despite resistance from officials in the Justice Department and even, possibly, from then-Attorney General John Ashcroft, but had been deeply, intimately involved in it. (No desire for classic presidential "plausible deniability" can be found here.) So this, as many critics have pointed out, was a lie. But what's more interesting -- and less noted -- is that it was a lie of choice. He clearly did not make the statement on the spur of the moment or in response to media questioning (despite the claims in some reports). He wasn't even "in conversation" in any normal sense. He was simply on stage expounding in a prepared fashion to an audience of citizens. So it was a lie that, given the nature of the event (and you can check it out yourself on-line), had to be preplanned.

It was a lie told with forethought, in full knowledge of the actual situation, and designed to deceive the American people about the nature of what this administration was doing. And it wasn't even a lie the President was in any way forced to commit. No one had asked. It was a voluntary act of deception. Now, he is claiming that these comments were meant to be "limited" to the Patriot act as the NSA spying program he launched was "limited" to only a few Americans -- both surely absurd claims. ("I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the N.S.A. program. The N.S.A. program is a necessary program. I was elected to protect the American people from harm. And on Sept. 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing, and will continue to do.")

In other words, by his own definition of what is "legal" based on that "obscure philosophy" (and with the concordance of a chorus of in-house lawyers), but not on any otherwise accepted definition of how our Constitution is supposed to work, the President has admitted to something that, on the face of it, seems to be an impeachable act -- and he has been caught as well in the willful further act of lying to the American people about his course of action. Here, however, is where – though so many of the issues of the moment may bring the Nixon era to mind -- things have changed considerably. Our domestic politics are now far more conservative; Congress is in the hands of Republicans, many of whom share the President's fervor for unconstrained party as well as presidential power; and the will to impeach is, as yet, hardly in sight.

In his news conference defending his NSA program, the President took umbrage when a reporter asked:

"I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?"

"To say ‘unchecked power,'" responded an irritated Bush, "basically is ascribing some kind of dictatorial position to the President, which I strongly reject."

How the nation handles this crossroads presidential moment will tell us much about whether or not "some kind of dictatorial position" for our imperial, imperious, and impervious President will be in the American grain for a long, long time to come.

Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and the author of The End of Victory Culture, a history of American triumphalism in the Cold War. His novel, The Last Days of Publishing, has just come out in paperback.

© 2006 Tom Engelhardt