Administration Defends NSA Spying, Further Confuses Issue
Dan Eggen and Walter Pincus report on yesterday’s speeches defending the administration’s controversial surveillance program. Former NSA director General Michael Hayden’s was the more informative of the two.
A senior U.S. intelligence official offered a wide-ranging and detailed defense of the National Security Agency’s domestic spying program yesterday, kicking off a White House campaign aimed at convincing the public that the effort is both legal and necessary to combat al Qaeda terrorists. Gen. Michael V. Hayden, the former NSA chief who is now deputy director of national intelligence, told reporters in Washington that the warrantless eavesdropping on calls and e-mails between the United States and overseas was “targeted and focused” and did not constitute a “driftnet” over U.S. cities. Hayden compared the intelligence techniques used in the program to the tactics employed in deciding whether to drop a 500-pound bomb on a terrorist target.
Based on the reporting from James Risen and others, most of us had concluded that this was a data mining operation and wrapped our analysis of the program around that assumption. This, therefore, muddies the waters considerably. We have gone from, to use Don Rumsfeld’s famous formulation, from the realm of unknown unknowns to known unknows. That is, we never understood the program but, for a short while, we thought we did.
While I have found numerous transcripts of President Bush’s speech (more on that later) I have not seen one of Hayden’s yet. From the snippets played on NPR this morning, one thing stood out: The use of the term “hot pursuit.” This is interesting because it is one of the many exceptions to the 4th Amendment’s requirements that police need a warrant before entering someone’s home and arresting them.
Hayden noted, too, that the decisions on these pursuits were made by the equivalent of a colonel or general officer. So, we’re talking GS/GM-15, O-6, FO/GO/SES/SIS level personnel who have eighteen or more years on the job. It stands to reason, then, that they should have the level of discretion in a “hot pursuit” situation as a rookie cop.
The problem, though, is conceptualizing how “hot pursuit” translates into a surveillance situation. It is easy to understand a police officer chasing a bad guy who then ducks into his residence. What the equivalent is for a terrorist talking on a phone is well beyond my understanding of things.
A Washington Times editorial this morning attempts to piece it together.
Precisely what the Bush administration’s National Security Agency wiretap program is, technically speaking, remains unknown to all but perhaps a few people in Washington. Certain aspects of it are becoming clearer by the day, however, and no doubt more will emerge in congressional hearings. In the meantime, the more that emerges, the less the program looks like Big Brother than it does a powerful antiterrorism tool that scans millions of communications. That tool could be abused in theory, but instead already appears to be responsible for successes in the war on terror.
The latest hint of this came Friday, courtesy of Homeland Security Secretary Michael Chertoff, who described to Roll Call’s Mort Kondracke what sounds like a large and mostly automated data-mining operation. “It’s hard to talk about classified stuff,” he said, but then hypothesized about “a large volume of data, a large number of numbers you’re intercepting” and of “culling through literally thousands of phone numbers” or possibly e-mails or Internet I.P. addresses. The former federal judge and head of the Justice Department’s criminal division defended the program vigorously, calling its surveillance methods “the most significant tool in the war against terrorism.”
That follows President Bush’s distinction of the program from more familiar wiretap operations, as well as remarks by the principal deputy director for national intelligence, Gen. Michael Hayden, who said at a Dec. 19 White House press conference that the program involves “a quicker trigger. It’s a subtly softer trigger. And the intrusion into privacy is significantly less. It’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order.”
The next paragraph begins, ” If data-mining is what’s going on here. . . .” I stopped reading.
Kevin Drum argues that if this isn’t data mining, “it’s precisely the kind of monitoring that the FISA court already approves routinely and in large volumes. Another few hundred requests wouldn’t faze them in the least.” He points to a NYT piece by David Sanger and John O’Neil that claims, “The standard laid out by General Hayden – a ‘reasonable basis to believe’ – is lower than ‘probable cause,’ the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.” Similarly, the staff at Editor & Publisher have great fun claiming Hayden doesn’t understand the 4th Amendment.
The problem with that analysis is that it’s simply wrong. That is, the courts have created a myriad of standards for searches, many times not requiring probable cause. The Supreme Court has allowed “reasonable suspicion” searches since at least the 1960s. (Indeed, there are times when authorities are allowed to conduct searches with no basis whatsoever, such as highway drunk driving roadblocks and at airports.)
Back to the Post piece:
In a separate speech later in the day, President Bush also repeated his argument that Congress effectively endorsed the program of eavesdropping without warrants under its authorization of military action against al Qaeda, dubbing the effort “a terrorist surveillance program.”
The president also focused on classified briefings that the White House gave for some senior leaders in Congress. “It’s amazing that people say to me, ‘Well, he’s just breaking the law.’ If I wanted to break the law, why was I briefing Congress?” he said, eliciting laughter from the crowd at Kansas State University.
A pretty good line.
Update: Matt Yglesias is not reassured by Hayden’s speech:
“Reasonable basis” here is in contrast to “probable cause” which is, in itself, a pretty lax burden of proof. So we’re talking about a light standard here. More troublingly, it’s not clear which light standard we’re talking about. But I worry about about things like “associaed with al Qaeda” and “al Qaeda or one of its affiliates.” A lot hinges here on what counts as an affilated, and what counts as association.
We are in a classic Catch-22 situation. We can not be told the actual scope and nature of the program because it is highly classified. Yet, without a pretty good understanding of the scope and nature of the program, we have no way of knowing how much it is contributing to our security or infringing on our liberties. We can make educated guesses based on news accounts that may or may not be accurate, presumably colored by our predisposition to trust the Bush Administration.