Sunday, January 15, 2006

"It's not the Spying, It's the Illegality"

That's how security expert Bruce Schneier ends one of three articles appearing in the current issue of "Crypto-Gram" on the topic of the Bush/NSA eavesdropping mess.

In the first article, "NSA and Bush's Illegal Eavesdropping", Schneier briefly discusses "Project Shamrock", an NSA program that effectively read every telegram coming into or leaving the United States during the 50's and 60'; the abuses of this program were directly responsible for the implementation of the Federal Intelligence Surveillance Act, or FISA.

Excerpts (emphasis added):

Most likely, Bush wanted a whole new surveillance paradigm. [...]

[...] Terrorism is a serious risk to our nation, but an even greater threat is the centralization of American political power in the hands of any single branch of the government.

Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful.

After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government. Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It's time we brought back the security system that's protected us from government for over 200 years.

Bruce Schneier is a security expert, but he is not one of the "security at any cost" crowd. He is, in fact, a leading proponent of balancing the costs and benefits of security proposals, and investing the scarce security resources available where they will do the most good (which, from reading his newsletter over the last couple of years, seems to leave TSA and DHS out). His main concern is maintaining individual privacy to the greatest extent possible, while still meeting legitimate government and business needs. Note that key word, "legitimate." This is one of the many things that separates Bruce Schneier from George Bush (along with the fact that Schneier writes and thinks in full, cogent, coherent sentences).

The second article, "The Security Threat of Unchecked Presidential Power", has this to say (emphasis added):

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

[...] [the Yoo memo 'justifying' the power grab] basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country ... merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.


More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House's initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.


This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

Schneier's third article (the last line of which serves as the title for this post) discusses "Project Shamrock" in much greater detail, including the abuses of pwer leading to the adoption of FISA.

A lot of people are trying to say that it's a different world today, and that eavesdropping on a massive scale is not covered under the FISA statute, because it just wasn't possible or anticipated back then. That's a lie. Project Shamrock began in the 1950s, and ran for about twenty years. It too had a massive program to eavesdrop on all international telegram communications, including communications to and from American citizens. It too was to counter a terrorist threat inside the United States. It too was secret, and illegal. It is exactly, by name, the sort of program that the FISA process was supposed to get under control.

Twenty years ago, Senator Frank Church warned of the dangers of letting the NSA get involved in domestic intelligence gathering. He said that the "potential to violate the privacy of Americans is unmatched by any other intelligence agency." If the resources of the NSA were ever used domestically, "no American would have any privacy left.... There would be no place to hide.... We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return."

Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.

We can decide as a society that we need to revisit FISA. We can debate the relative merits of police-state surveillance tactics and counterterrorism. We can discuss the prohibitions against spying on American citizens without a warrant, crossing over that abyss that Church warned us about twenty years ago. But the president can't simply decide that the law doesn't apply to him.

This issue is not about terrorism. It's not about intelligence gathering. It's about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.

It's not the spying, it's the illegality.

I find it surprising, in a way, that in none of these three articles, nor in most of the rest of the stories I've read on this mess, does "Tricky Dick" Nixon get mentioned. Remembering the days of the original "Enemies List" (not O'Reilly's), and the rest of the shenanigans perpetrated by CREEP, it's hard to believe Nixon wasn't also wiretapping those he feared and loathed.

I suppose, as former White House counsel John Dean points out in Worse Than Watergate, the main similarity in the two administrations was a mania for secrecy. That, of course, "is now inoperative"... Bush isn't trying to conceal this latest flagrant violation, he's flaunting it.

Geeting back to Bruce Schneier for a moment, if you have any interest in "security: computer and otherwise", as he puts it, you really should read his newsletter. He discusses everything from identity theft to universal ID cards to RFID passports to license-plate-recognition software to allowing plastic knives back onto airplanes... and he does it in terms that non-security types can understand.

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