It seems so rare to find anyone of integrity and purpose among the ruling elite of our nation today. We have become a democratic state of cynics, ruled by cynics. We see ulterior motives in every action, every vote, and every speech. The result of this cynicism is that our representatives, our nation’s leaders, believe that provincial notions such as law, justice, and equality are simply maudlin platitudes to be thrown about between kissing infants on the campaign trail. So when integrity rears its head within the stinking milieu of our national politics it is literally stunning to behold.
The past few weeks have been filled with consternation for those of us involved in telecommunications and civil liberties issues. This week, two of the major issues came to a head: FISA reform and Telecom Immunity. Senator Reid (D) announced last week that he would violate Senate traditions, ignoring Senator Dodd’s hold, and bring the highly flawed Bush administration FISA bill, S.2248, to a vote. Aside from expanding warrantless, unsupervised, surveillance, the bill would grant retroactive immunity for telecommunications companies which may have broken the law repeatedly over the past six years. Senator Dodd vowed he would filibuster the bill.
While numerous Democrats claimed they opposed the bill and telecom immunity — including Sen. Reid– few actually stood to oppose it. Sens. Clinton, Biden and Obama found they could not leave the diners and palm pressing of Iowa to return to Washington to perform the job they were elected to do. My own Senator, Durbin (D), refused to answer my inquires or discuss his position on the bill. But Senator Dodd sped from the campaign trail to defend the principles of the fourth amendment and equality under the law. While I listened to the floor debate on Monday, I was both infuriated, by the obvious mendacity of those standing for the bill, and inspired by the integrity of Sen. Dodd and those few who stood with him. In the end, Senator Reid was forced to withdraw the bill until next year. For those of us involved in this issue, it was as close to a moment of true democracy that we have seen in ages. Nearly magical.
Yesterday, National Intelligence Director Mike McConnell offered some enlightening and frightening testimony before the judiciary committee. McConnell testified to what a number of us have been for years:
[the] Director of National Intelligence acknowledged that the terror attacks of Sept. 11, which he invoked to justify expanding US spy powers, “could have been prevented” under existing laws if intelligence agencies had “connected the dots” in analyzing intelligence.
That’s right, there was no real need for the Patriot Act, FISA revisions, or the myriad of other ‘enhancements’ to surveillance laws to prevent another 9/11. Those events could have been prevented but for the incompetence of the agencies involved. Instead, we have provided the alphabet soup of security agencies with more unfettered access to our personal data. Has this made us more secure? Well, the numbers suggest that perhaps we are less secure.
When questioned about the number of Americans currently under surveillance, McConnell responded: “It’s a very small number considering that there are billions of transactions [intercepted] every day.” Let us consider this for a moment: if the agencies are intercepting billions of transactions a day how can these be processed? Assuming that McConnell was engaging in some hyperbole, let’s assume 1bn transactions a day. Throw away 50 percent for obvious misses, and assume an average of 10 seconds to review and classify a transaction (a very generous average, given translation time) would mean that it would take 155.5 man years (56,757.5 days) to review one day’s collection of data. This enormous amount of data, obviously, cannot be properly analyzed, so they are simply collecting and storing it for future reference and correlation. This suggests that quality of intelligence data has simply been replaced by quantity. So the odds of actually preventing an event are actually less then they were prior to this massive collection simply due to the volume that needs to be plowed through. In other words: analysts would be unable to “connect the dots”, because the dot are buried in mounds of background noise.
McConnell, and his supporters, though keep insisting that huge amounts of data collection is necessary to prevent an attack. If the data was there prior to 9/11 to prevent that attack and could not be analyzed properly, how can exponentially more data be handled to prevent an attack? It can’t . For the supporters of the security state the entire debate is really about pushing acceptance of wholesale government surveillance not about useful intelligence gathering.
Earlier this week, National Intelligence Director Mike McConnell gave a lengthy and somewhat duplicitous interview with the El Paso Times. Mr. McConnell made available a number of interesting assertions and revelations. For instance, this is the first time a government official acknowledged that private firms (such as AT&T and Verizon) had been aiding the intelligence establishment. The involvement of these firms had remained a secret until now. This confirmation will surely allow the EFF lawsuit against AT&T to continue. But McConnell also made some pretty odd assertions. In order to justify the government’s need to exempt eavesdropping from court reviews and the warrant process, the NID asserts that the 4th amendment just generates too much paperwork:
And now you’ve got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number.
As Ryan Singel has pointed out, based upon available figures from 2006 in which 2176 FISA warrants were approved, this means the NSA spent 436,200 hours on FISA warrants last year — an incredible number — around 53,275 workdays. This means the NSA employs one of the largest army of lawyers in country or Mr. McConnell is simply exaggerating to make his case more plausible. As it would be unthinkable to believe that our government would ever ever make up facts to justify its actions, I recommend all law students begin to flood the NSA with their resumes.
Throughout the interview McConnell stresses that foreign intelligence gathering should be unfettered by laws. Here, he’s essentially stating what both policy and law have reflected for nearly 50 years. FISA was never meant to apply to foreign surveillance - the original laws specifically exempts gathering on foreign soil. We are led to believe that a recent court ruling stated that a warrant was required if a called passed through American facilities, but not terminated in this country, and the law needed ‘updating’ due to this ruling. But McConnell’s duplicity seems to know no bounds. The law passed allows surveillance on American soil, against Americans, for any reason as long as he and the Mr. Gonzoles believe one of the parties is outside the country. By reiterating the need for foreign intelligence gathering, McConnell tries to give the impression that somehow American’s are exempt from warrantless surveillance. He even suggests that he insisted upon it:
[in the FISA update] I was after three points, no warrant for a foreigner overseas, a foreign intelligence target located overseas, liability protection for the private sector and the third point was we must be required to have a warrant for surveillance against a U.S. person. And when I say U.S. person I want to make sure you capture what that means. That does not mean citizen. That means a foreigner, who is here, we still have to have a warrant because he’s here . . .
McConnell tries to spin himself and the intelligence community as simply professional and law abiding. But given what we know about the previous year’s Terrorists Surveillance Program, we know this is not the case. What we know of the program strongly indicates that it was carried out in violation of FISA and several other federal laws. During that time little effort was made to modify FISA or share information about the program. It would appear that FISA didn’t need ‘updating’ until TSP became public. In other words, McConnell is saying now that you know about our illegal activities, we need to make them legal so those pesky courts can’t annoy us.
McConnell then goes on to employ the greatest trope used used by the security state:
The fact we’re doing it [discussing surveillance] this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.
Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?
A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing.
Yes, for some reason, it’s a democratic process - damm founding fathers, and their checks and balances.
This is without a doubt the most absurd argument put forth by this administration in the entire surveillance state debate. The “I could tell you, but then I’d have to kill you” message is designed to stop all critical inquiry into our government’s actions. It is intimidation through hyperbole. The argument suggests that our intelligence community is either 1) greatly under estimating their adversaries, 2) engaging in acts which would be abhorrent to the people they are serving, or 3) both.
Around the world, America is viewed as a technological powerhouse. We have the largest and most sophisticated intelligence gathering operations in the world. Anyone who has ever reviewed the basics of American surveillance during the Cold War would come away inspired by American ingenuity and technology. Yet, this administration suggests that the same terrorists which they claim have a vast global well organized network would not think that America was eavesdropping on their phone calls? Do they really believe that these terrorists networks are unfamiliar with the basics of guerrilla warfare? The premise of which states that a weaker force should always use their opponents strengths against them — for instance, an opponent with vast electronic eavesdropping capabilities may be overwhelmed by false intelligence planted electronically. If we are to believe the ‘wiretapping is too secret to talk about’ argument, then we are to believe that our own intelligence community is comprised of unimaginative dunces spending all their time filling out warrant requests and scrutinizing every utterance as a real threat against America. If this is the case no amount of secrecy will prevent attacks against this country. It is far more likely that the intelligence community requires such secrecy because it is engaged in acts which violate the law and founding principles of this country. It is more likely that this administration is more interested in surveilling political opponents at home then they are eavesdropping on threats abroad. It it more likely that the intelligence community is building a national surveillance state rather then protecting the laws they were sworn to enforce.
Mr. McConnell was absolutely correct about about one thing, “sunshine is a good thing”, but dawn remains far off for the moment.
Carol, my intrepid wife, stenciled the above image on the front of our coffeehouse last week in protest of the Protect America Act of 2007. Of course the more we actually learn about the act the worse it seems. It has now become apparent that expiration date of the act is not the six months, reported in the major media, but eighteen months — allowing Mr. Bush to exert monarchical powers throughout the rest of his term. Susan Landau has pointed out that
To avoid wiretapping every communication, NSA will need to build massive automatic surveillance capabilities into telephone switches. Here things get tricky: Once such infrastructure is in place, others could use it to intercept communications.
She is absolutely correct to suggest that these systems, once in place, are ripe for exploitation by third parties. It should also be noted that to build these systems will take great deal of time and effort, and until they are in place it should be assumed that the NSA is simply capturing all phone data it must on a switch related to an investigation it’s performing. Additionally, once the infrastructure is in place to perform this type of automatic monitoring the chances that it will be misused are great and the chances that it will be dismantled are nil.
Yesterday, the House of Representatives passed S.1927 - The Protect America Act. The act passed early Saturday morning by the Senate gives the president unfettered power to surveil any person, or persons, within the United States as long as he ‘believes’ that his is also surveilling someone outside the country as well. The act specifically exempts any such surveillance from judicial oversight. With no requirement of a warrant, and no one allowed to oversee the orders of surveillance, the president may now legally spy on any American citizen he likes. Marty Lederman has some excellent analysis of the act at Balkinization.
So how did we arrive at this point? A place where our government betrays its founding principle — the checks and balances of power — in the middle of the night, and where our own leaders are given the absolute power to intrude into our private affairs legally? The reason and cause is simple: fear. Democrats voted for the act because they feared that the president would accuse them of liking terrorists if they didn’t. Or worse, if a terrorist attack occurred the president would blame them for the attack. Republicans voted for the act because they were afraid of appearing unsupportive of the president, and, also, feared the accusation of liking terrorists.
Fear has become the overwhelming force which drives our country. We righteously worship it. Like supplicants at the alter of a jealous God will will do anything to appease it. We will offer up our rights and liberties; we will sacrifice our democratic heritage; we will allow our country to wage endless wars, and we will consume giant sport utility vehicles or any other goods to assuage the God of fear. Like any cult, fear has its high priests and deacons: like those who claim that western civilization is but a single terrorist attack away from collapse and ruin or those who suggest that debate or discussion is, in the very least, capitulation. For fear, as a master, cannot tolerate rational discussion and dissent, it survives and breeds through ignorance, hyperbole, and the all too human desire for power.
In 1955, poet Allen Ginsberg penned his masterpiece Howl. In his epic, Ginsberg hearkens post-war America to Moloch, the God of industrialized conformity and decay, which demands the sacrifice of our lives and those of our children. Today, post-9/11, our new lord has become Deimos — child of Aries and Aphrodite (War and Lust) and brother of Phobos (terror). But today we have no great poet or statesmen to calm the fever of our devotion to Deimos. They are all at the alters awaiting their turns to make sacrifice or offer prayers of protection. Deimos, like Moloch, can never be appeased. He will always want more; the next offering must always be greater then the previous. As with all cults, followers will eventually fade, and the priests will keep the pyres burning for years beyond necessity. But the God, and his priests, will never return the sacrifices made by the people in their moment of faith.
This evening, the Democrat controlled Senate voted to give Mr. Bush unprecedented powers of surveillance. In a vote of 60-28 — in the middle of the night — they decided to cave in to the fear that this administration has bullied the American people with for the past six years. As the measure was passed at the last minute we — the people — have no real idea what is in the legislation, congressional records are published the next business day; however, we can assume that Mr Bush got his 120 day pass to conduct surveillance without review, and got approval for the Attorney General to be the sole arbiter of who is to be targeted by the new found power. It goes without saying that the existing FISA law did not require any changes until Mr. Bush was found ignoring it.
It is, however, the constant fear mongering which the Republican party has used over and over and over which allowed then to push through another midnight theft of our rights as free people. The question which begs — requires — an answer of these people is what in God’s name are we protecting from the terror you constantly say is at our doorstep? Is it simply the freedom to buy tube socks for $1.69? Is it the freedom to choose between Walmart and Target? Or is it the freedoms and rights handed down to us by our democracy: the right to redress one’s government, the right of habeas corpus, the right to criticize one’s government, the right to be secure in one’s person and papers, and the greatest of those principles: the right to know that we are a nation of laws and not men. Those who mongered for this legislation, and the cowards who voted for it, will fall back on the simplistic mantra of protection, security, the freedom to live. Liberty and freedom are not satisfied by mere existence. Great statesmen understood this throughout our our history. ‘They hate us for our freedoms’, Mr. Bush once said. It now seems that he and the congress have decided to mitigate that hatred by eliminating those freedoms that they believe spur our enemies on. What are we fighting for?
The fact of the matter is, that we are all now suspects in our own country — we are now all subject to a level of scrutiny which would have shocked our founders. The content of our phone calls, our e-mails, our Internet usage, our banking records, our charge records, our day to day lives are now subject to collection and use by our own government to do with as they please. Given that this administration has politicized nearly every function of government, can there be any doubt how they will make use of this collected data?
In order to let the listeners know of our disgust at their prying eyes and ears, I suggest a minor, perhaps annoying protest. Send an encrypted e-mail to your congressman, the NSA, the CIA, or simply to anyone whose mail routes through the AT&T network. Use a simple symmetric encryption algorithm, like blowfish or AES, and encrypt a message such as:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The NSA, and others, will no doubt be able to decipher your cryptogram, but at the expense of time and processing power. It may take quite a few days of processing time to break your simple message of Constitutional Law. If you want to be more clever send them a photo of your cat or a tree and embed your message with stenography - believe me they’ll detect the message is there. If you want your message to receive priority processing, just include something like Koran, jihad, death, etc in the subject line or add a mail header.
Given the new found power of our Chief, it is best that we all begin encrypting our personnel correspondence sooner then later. Here are some resources to help you out:
GPG - symmetric and asymmetric encryption application
It seems so rare to find anyone of integrity and purpose among the ruling elite of our nation today. We have become a democratic state of cynics, ruled by cynics. We see ulterior motives in every action, every vote, and every speech. The result of this cynicism is that our representatives, our nation’s leaders, believe that provincial notions such as law, justice, and equality are simply maudlin platitudes to be thrown about between kissing infants on the campaign trail. So when integrity rears its head within the stinking milieu of our national politics it is literally stunning to behold.
FISA, justice, telecom
