Informed Speculation

The Bush Administration has clearly made the decision that the American people are going to support the surveillance where one end of the call is in the United States if the issue is framed to their advantage, and today both President Bush and Michael Hayden went on the offensive. First, Bush:

Let me talk about one other program — and then I promise to answer questions — something that you’ve been reading about in the news lately. It’s what I would call a terrorist surveillance program. After the enemy attacked us, and after I realized that we were not protected by oceans, I asked people that work for you — work for me, how best can we use information to protect the American people? You might remember there was hijackers here that had made calls outside the country to somebody else, prior to the September the 11th attacks. And I said, is there anything more we can do within the law, within the Constitution, to protect the American people. And they came back with a program, designed a program that I want to describe to you. And I want people here to clearly understand why I made the decision I made.

First, I made the decision to do the following things because there’s an enemy that still wants to harm the American people. What I’m talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they’re making a phone call in the United States, it seems like to me we want to know why.

This is a — I repeat to you, even though you hear words, “domestic spying,” these are not phone calls within the United States. It’s a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States. I’m mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program. You know, it’s amazing, when people say to me, well, he was just breaking the law — if I wanted to break the law, why was I briefing Congress? (Laughter and applause.)

Federal courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority. Recently there was a Supreme Court case called the Hamdi case. It ruled the authorization for the use of military force passed by the Congress in 2001 — in other words, Congress passed this piece of legislation. And the Court ruled, the Supreme Court ruled that it gave the President additional authority to use what it called “the fundamental incidents of waging war” against al Qaeda.

I’m not a lawyer, but I can tell you what it means. It means Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics. It’s an — you’ve got the power to protect us, but we’re not going to tell you how. And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it’s a different kind of war with a different kind of enemy. If they’re making phone calls into the United States, we need to know why — to protect you. (Applause.)

As my regular readers know, I’ve been quite adamant about my opinion that the NSA surveillance program revealed by the New York Times was (is) either a data-mining or packet-sniffing program, and, while I’ve questioned the legality of the program, I’ve used that as a sort of extra-legal justification at times (yes, I realize that’s tricky ground to stand on), since, as such, a warrant would be impossible to obtain by definition.

Well, I’ve gone out pretty heavy for that interpretation, as I said, but today’s stories have me wondering if I’m completely wrong. Bush clearly states here (I know he’s been mistaken on details before, but this is what he says) that the program is for phone calls into the United States, from known al Qaeda suspects. I’m far from an expert on electronics surveillance, but that sounds like a sort of wiretap in reverse – no matter what the number receiving the call is, I intend to tap into the conversation if it emanates from this known number used by al Qaeda (or is that just a normal wiretap? Regardless, it doesn’t sound like the program I’ve bet the farm on).

Now, Hayden. Interestingly, Hayden’s remarks do contain some indications that the data-mining/packet-sniffing theory may be correct:

Gone were the days when signals of interest — that’s what NSA calls the things they want to copy — gone were the days when signals of interest went along some dedicated microwave link between strategic rocket forces headquarters in Moscow and some ICBM in western Siberia. By the late ’90s, what NSA calls targeted communications — things like al Qaeda communications — coexisted out there in a great global web with your phone calls and my e-mails. NSA needed the power to pick out the one, and the discipline to leave the others alone.

Now, that sure sounds like packet-sniffing, doesn’t it? And there’s this:

…[T]he revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don’t think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States.

Hayden then shifts gears, however, and seems to be saying that those remarks are not aimed at the program so recently revealed:

So now, we come to one additional piece of NSA authorities. These are the activities whose existence the president confirmed several weeks ago. That authorization was based on an intelligence community assessment of a serious and continuing threat to the homeland. The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.

…[I]n the end, NSA would have to implement this, and every operational decision the agency makes is made with the full involvement of its legal office…And so even though I knew the program had been reviewed by the White House and by DOJ, by the Department of Justice, I asked the three most senior and experienced lawyers in NSA: Our enemy in the global war on terrorism doesn’t divide the United States from the rest of the world, the global telecommunications system doesn’t make that distinction either, our laws do and should; how did these activities square with these facts?

They reported back to me. They supported the lawfulness of this program. Supported, not acquiesced. This was very important to me. A veteran NSA lawyer, one of the three I asked, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program have been very careful from the outset because they knew there would be a day of reckoning. The NSA lawyer replied to him that that had not been the case. NSA had been so careful, he said — and I’m using his words now here — NSA had been so careful because in this very focused, limited program, NSA had to ensure that it dealt with privacy interests in an appropriate manner.

Notice the choice of words – very focused; limited.

Let’s get to the core of the matter with two further excerpts, as this post is becoming rather long, then some concluding thoughts:

…[T]here are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president’s authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

Again, this echoes what the President said.

Then Hayden takes the shot at all the armchair experts (ouch – I felt that!):

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the technology we can to ensure that this is so.

I’m not prepared to definitively say I was wrong on there being some type of mass surveillance of the data-mining/packet-sniffing yet. Based on comments like those of Hayden today, I am prepared, however, to say that it may not be the slam dunk I’ve made it out to be, and it appears that the program revealed to the New York Times is not that program, but rather the more narrowly focused (and traditional, except for the fact that one end of the conversation is domestic) program that Hayden and Bush described.

Why does it matter? In some ways, it doesn’t; the President will claim that he had the authority in either case under the ‘Authorization For the Use of Military Force’, and he’s either wrong or right…for reasons I can’t clearly articulate right now, though, I feel the case is stronger under the mass surveillance method than the narrower targetting, though I suspect the majority of the public may see that differently.

I’m going to compose a second post later on the very interesting Q & A that followed Hayden’s speech, and I’ll keep an eye out for any further relevent analysis…