Decision ‘08

NSA Hearing Highlights, Part Four

NOTE: This series is intended for the attention-span-impaired; I pull out the juicy bits of the transcript so you don’t have to read the whole dreary thing! What a service…

The previous installments are here, here, and here…

Transcript links can be found here…

Alright, here we go (and it looks like this won’t be the final installment, after all - the transcript keeps growing!). Let’s start this installment with Dick Durbin, who scores a pretty good point up front:

Referring to FISA as a useful tool in wiretapping is like referring to speed limits and troopers with radar guns as useful tools on a motoring trip.

I think FISA is not there as a useful tool to the administration. It is there as a limitation on the power of a president when it comes to wiretapping.

And I think your use of that phrase, “useful tool,” captures the attitude of this administration toward this law: We’ll use it when it doesn’t cause a problem; we’ll ignore it when we have to.”

Brownback used the undetermined length of the War on Terror to suggest that the Administration work with Congress to amend FISA:

It strikes me that we’re going to be in this war on terrorism possibly for decades; maybe not. But this could be the Cold War of our generation. Maybe it doesn’t go that period of time, but it has the possibilities of going for some extended period of time.

And I share Senator DeWine’s concern that we should look, then, at the FISA law, and make sure that as we move forward in this, that we’re not just depending upon these authorizations of war to say that that puts us in a superior position under the Article II powers, but that to maintain the support of the American public, to have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public’s support for this.

And so I want to look and direct you to looking at the FISA law in particular. And you’ve made some comments here this today that have been very well stated and thought through. You’ve talked to one point the FISA law was not well structured to the needs of today’s terrorist war effort. The law was passed — what? — 27 years ago or something of that nature, and certainly didn’t contemplate a war on terrorism like we’re in today.

And I want to look specifically at how we could amend that FISA law, looking at a possible decades-long war on terrorism.

Leahy makes a valiant effort at being King Jerk for a day with the following exchange:

Did any member of this committee, this Judiciary Committee which has to write the law, did anybody here tell you we couldn’t write a law that would allow you to go after Al Qaida in the way you’re talking about?

GONZALES: Sir, I don’t believe there were any discussions with any members of the Judiciary Committee…

LEAHY: Even though we’re the ones that have to write the law, and you’re saying that you were told by members of Congress we couldn’t write a law that would fit it, and now you tell us that the committee that has to write the law never was asked.

GONZALES: We had…

LEAHY: Does this sound like a CYA on your part? It does to me.

GONZALES: We had discussions with a bipartisan leadership of the Congress about this program.

LEAHY: But not from this committee. We have both Republicans and Democrats on this committee, you know?

GONZALES: Yes, sir, I do know that.

LEAHY: And this committee has given you, twice under my chairmanship, we have given you five amendments to FISA because you requested it.

But this, you never came to us.

Mr. Attorney General, can you see why I have every reason to believe we never would have found out about this if the press hadn’t?

LEAHY: Now, there’s been talk about, “Well, let’s go prosecute the press.” Heavens, thank God we have a press that at least tells us what the heck you guys are doing because you’re obviously not telling us.

GONZALES: Sir, we have advised bipartisan leadership of the Congress and the Intel Committees about this program.

LEAHY: Well, did you tell them that before the passage of the USA Patriot Act?

GONZALES: Sir, I don’t recall when the first briefing occurred. But my recollection is that it was shortly after the program was initiated.

LEAHY: OK, well, let me ask you this, then.

You say, several years after it started, you came up here and talked to some group of members of Congress. The press reports said that the president’s program of spying on Americans without warrants was shut down for some time in 2004. That sounds like the time you were up here.

If the president believed the program was necessary and legally justified, why did he shut it down?

GONZALES: Sir, you’re asking me about the operations of the program.

LEAHY: Of course, I’m sorry, Mr. Attorney General, I forgot you can’t answer any questions that might be relevant to this.

(LAUGHTER)

Well, if the president has that authority, does he also have the authority to wiretap Americans’ domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?

I’m talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they’re involved in Al Qaida activity?

GONZALES: Sir, I’ve been asked this question several times.

LEAHY: I know. And you’ve had somewhat of a vague answer, so I’m asking again.

GONZALES: And I’ve said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.

GONZALES: I will say that that is not what we are talking about here. That is not…

LEAHY: Are you doing that?

GONZALES: … what the president has authorized.

LEAHY: Are you doing that?

GONZALES: I can’t give you assurances. That is not what the president has authorized for this program.

LEAHY: Are you doing that? Are you doing that?

GONZALES: Senator, you’re asking me again about operations, what are we doing.

LEAHY: Thank you.

Schumer obviously feels slighted, though, and gets in on a little of that action, too:

SCHUMER:…[T]hank you, General Gonzales. I know it’s been a long day for you, especially with all that bobbing and weaving. It’s not so easy.

We talked before about the legal theory that you have, under AUMF. And I had asked you that under your legal theory, can the government, without ever going to a judge or getting a warrant, search an American’s home or office.

I’m not saying — well, can you give me an answer to that? Why wouldn’t the same exact legal theory apply? That the Congress in the resolution gave the president power he needed to protect America. Why is one different than the other? Both are Fourth Amendment.

GONZALES: I’m not suggesting that it is different, quite frankly. I would like the opportunity, simply, to think…

SCHUMER: I’m sorry. If you could pull the mike up. Sorry.

GONZALES: I’m sorry. I’m not saying that it would be different. I would simply like the opportunity to contemplate over it and give you an answer.

SCHUMER: And you will be back here so we can ask that. Right?

GONZALES: According to the chairman.

SCHUMER: OK. Good.

If not, I would ask unanimous consent that General Gonzales be given time to answer that one in writing.

HATCH: He said he would.

SCHUMER: OK. Good.

Now, here’s the next question I have: Has the government done this? Has the government searched someone’s home, an American citizen, or office, without a warrant since 9/11, let’s say?

GONZALES: To my knowledge, that has not happened under the terrorist surveillance program, and I’m not going to go beyond that.

SCHUMER: I don’t know what that — what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone’s home. It’s different.

So it wouldn’t be done under the surveillance program. I’m asking you if it has been done, period.

GONZALES: But now you’re asking me questions about operations or possible operations, and I’m not going to get into that, Senator.

SCHUMER: I’m not asking you about any operation. I’m not asking you how many times. I’m not asking you where…

GONZALES: You asked me has that been done.

SCHUMER: Yes.

GONZALES: Have we done something?

SCHUMER: Yes.

GONZALES: That is an operational question, in terms of how we’re using capabilities.

SCHUMER: So you won’t answer whether it is allowed and you won’t answer whether it’s been done.

I mean, isn’t part of your — in all due respect, as somebody who genuinely likes you, but isn’t this part of your job, to answer a question like this?

GONZALES: Of course it is, Senator.

SCHUMER: But you’re not answering it.

GONZALES: Well, I’m not saying that I will not answer the question.

SCHUMER: Oh.

GONZALES: I’m just not prepared to give you an answer at this time.

SCHUMER: OK. All right. Well, I’ll accept.

And I have another one, and we can go through the same thing.

How about wiretaps? Under the legal theory, can the government, without ever going to a judge, wiretap purely domestic phone calls?

GONZALES: Again, Senator, give me the opportunity to think about that. But, of course, that is not what this program is…

SCHUMER: It’s not. I understand. I’m asking because, under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what’s going on now.

Let me just — has the government done this? You can get back to me in writing.

GONZALES: Thank you, Senator.

SCHUMER: OK. And one other. Same issue. Placed a listening device — has the government, without every going to a judge, placed a listening device inside an American home to listen to the conversations that go on there?

Same answer.

GONZALES: Same answer, Senator.

SCHUMER: OK.

But now I have another one. And let’s see if you give the same answer here.

GONZALES: All right.

SCHUMER: And that is: Under the legal theory, can the government, without going to a judge — this is legal theory; I’m not asking you whether they do this — monitor private calls of its political enemies, people not associated with terrorism but people who they don’t like politically?

GONZALES: We’re not going to do that. That’s not going to happen.

SCHUMER: OK.

I hope to wrap up in a fifth and final installment later…

UPDATE 3:18 p.m.: On second thought, there’s not much of the transcript left…I’ll wrap up in an update in a few…

UPDATE 3:45 p.m.: I did a series on whether the NSA leak in the NY Times harmed national security some time ago; Senator Cornyn of my home state touched on that with this exchange:

CORNYN: Attorney General Gonzales, Chairman Specter had to step out, but he asked me to proceed after Senator Durbin, and I’m happy to do that, so we can move on. If an employee of the National Security Agency has a concern about the legality of what they’re being asked to do, is it — are they authorized to have a press conference or to otherwise leak that information to outside sources?

GONZALES: Senator, I think there are laws that prohibit the disclosure of classified information. I think there might be other ways that maybe would — that would certainly be more appropriate.

CORNYN: Let me suggest one to you.

CORNYN: 1998, Congress passed the Intelligence Community Whistleblower Protection Act, which provides in part that an employee of the DIA, The National Imagery and Mapping Agency, the National Reconnaissance Office or the National Security Agency or a contractor of any of those agencies who intends to report to Congress a complaint about the legality of the program, that they can report that to the inspector general of the Department of Defense or to the leadership of the Intelligence Committees in the United States Congress.

Would you consider that to be a more appropriate place for a so- called whistleblower to report their concerns?

GONZALES: Yes, sir, I would.

CORNYN: Well, at the very least, there would be an opportunity for those officials to evaluate the complaint of this individual, and we wouldn’t risk the disclosure of highly classified information or programs that are collecting intelligence.

GONZALES: No question about it.

The danger or problem of going to the media as an initial matter is that you have some people, I think, whose motivation, I think can be questioned in terms of why are they doing that.

And when they go out an talk to the public about a highly classified program, they harm the national security of this country.

I think Congress realized that when they passed the statute that you just described, to try to provide an avenue for those people who legitimately are concerned about perhaps wrongdoing, that they have an avenue to pursue to express their grievances and to do so in a way that we don’t jeopardize the nation’s secrets.

Also during Cornyn’s last segment, the Attorney General supplied a helpful checklist of when FISA applies:

GONZALES: Whether or not FISA applies depends on the answer to basically four key questions: Who is the target? Primarily, we’re concerned about whether or not the communication involves a U.S. person.

Where is the target? Primarily we’re concerned whether or not the person is in the United States.

Where is the acquisition taking place?

And then, finally, what are you trying to acquire? Is it wire communication? Is it radio communication?

Here’s another interesting bit from that, one that seems at first glance to be at odds with the assertion that the program is narrowly tailored for known or suspected terrorists, and that points back at possible data-mining or packet-sniffing:

CORNYN: The problem with FISA, as written, is that the surveillance it authorizes is unusable to discover who is a terrorist, is distinct from eavesdropping on known terrorists.

Would you agree with that?

GONZALES: That would be a different way of putting it, yes, sir.

CORNYN: You would agree with that statement?

GONZALES: Yes, sir.

For the real aficionados, here’s a bit on the almost-certain data-mining or packet-sniffing operation introduced by Michael Hayden post-9/11:

KOHL: All right. The New York Times reported that in interviews with current and former law enforcement officials, that the flood of NSA tips that came from this program led them to expend considerable resources in following the leads and diverted some agents from work that they had viewed as more productive.

Law enforcement officials interviewed said that the program had uncovered no active plots in the United States.

One said that, quote, “The information was so thin and connections were so remote that they never led to anything,” unquote.

Another said, quote, “It affected the FBI in the sense that they had to devote so many resources to tracking every single one of these leads and, in my experience, they were all dry leads,” unquote.

So was there a concern that this program is not collecting enough worthwhile information?

And does this suggest that the net was perhaps too large and that you ensnared too many Americans who were not in fact involved in any terrorist activities?

GONZALES: Thank you for that question, Senator. I’m aware of these stories.

First of all, it is true that Director Mueller feels very strongly that we cannot afford to not investigate, one way or the other, or to check out every particular tip. We have an obligation to do that.

I think General Hayden has already indicated publicly that, immediately following the attacks of 9/11, he exercised his own independent authorities which do exist for the NSA to gather up information — gather up more information than he normally would do — again, these are under existing authorities, lawful authorities — and to share all that information with the FBI.

And so you had a situation where the NSA was gathering up more information than it normally does and then sharing more of that information with the FBI.

We quickly discovered that that was not very efficient because of the fact that it required the FBI to utilize their resources. And so that procedure stopped.

One final piece that reinforces the impression that there is some data-mining going on, even if it isn’t used in this program:

BROWNBACK: And this would include these sort of operations we’ve read about, about data-mining operations? Would that include those sorts of operations or are those totally a separate type of field?

GONZALES: I’m not here to talk about that. Again, let me just caution everyone that you need to read these stories with caution.

GONZALES: There is a lot of mumbling — I mean mixing and mangling of activities that are totally unrelated to what the president has authorized under the terrorist surveillance program. So I’m uncomfortable talking about other kinds of operations that might — that are unrelated to the terrorist surveillance program.

Specter wrapped up by once again imploring the AG to take the entire program to the FISA court.

Thanks for your patience…we’ll be there for round 2, whenever that may be…

5 Responses to “NSA Hearing Highlights, Part Four”

1 too many steves Says:
February 7th, 2006 at 5:30 pm
There is some torturous partisan positioning going on here (see: Leahy & Schumer) but I find these hearings useful not so much to the final determination of the legality of the program but to clearly document the facts and positions for a judiciary review. Of course, that would all be moot if Dewine, et al, succeed in modifying FISA to accommodate this program.

One other thing, it sure is easy to tell where the players line up on this issue based on which of the following phrases they use to describe the program:

“terrorist surveillance program” or “domestic spying program”.
2 Mussolini Says:
February 7th, 2006 at 8:57 pm
Mark, were you aware of the Italian domestic wiretapping action that uncovered and foiled a plot against the US? Here is the link.

The media won’t pick it up because it validates what Bush is doing.
3 Gwedd Says:
February 7th, 2006 at 9:24 pm
Comrades,

Well, in the Navy, there is still a universal response when asked about nuclear weapons, which is also modified for other actions, to wit: “The United States Navy will neither confirm nor deny the existence of nuclear weapons aboard any aircraft, vessel, or station.” To my mind, that’s the position that the administration should be using with these hearings.

In other words, saying “we’ll be happy to talk to you in a closed session, but not on camera, in public, etc…”

If folks want some more interesting tidbits on this data collection, I would urge them to do a search for “Project Echelon”. That’s the main physical system for data collection for the US and our allies.

Which brings us to an interesting point. If the data is collected offshore of the US, say in Australia, or England, and is intercepted in the free and clear, then what’s all the hubbub? The FBI took down most of the mob through eavesdropping on cellphone calls, which required no warrants. Anytime you broadcast in the ether, through radio, microwave, or any other medium, you forfeit any claim to privacy. It’s no different than you and a friend talking in a pub or cabaret, etc. Others might well overhear your conversations, since you are willingly speaking in an open forum.

If the US sigint collection points are overseas, and intercept calls transmitted through the ether, then there is no law broken.

If you expect privacy, and want the Feds to need warrants, then you need to use a lanline and/or voice encryption. Either one is a clear demonstration of the belief and expectation of privacy. Otherwise, you are fair game for anyone that wants to listen in.

Respects,

Gwedd
4 Mark Says:
February 7th, 2006 at 9:36 pm
Mussolini, I had not seen that…thanks for the link, I’ll check it out…
5 Ashok Mukerji Says:
February 8th, 2006 at 9:06 am
Re: Senator Dick Durbin is questioned by Paul Mirengoff for Pajamas Media and Power Line:

Wonderful! The last line is the best: Dan Rather knows about Pajamas Media & Powerline!