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.

Agreed.

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.

FILED UNDER: General, Intelligence, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. DC Loser says:

    The only thing Al Qaeda has to do to mess all of this up and cause a constitutional uproar is to start making calls to members of the US Congress, executive branches, war supporters, and have their numbers pop into the database. They will be screaming bloody murder when they are investigated by the FBI.

  2. Movie Guy says:

    James,

    Here is the source for the official text of Gen Michael Hayden’s speech on Monday:

    REMARKS BY
    GENERAL MICHAEL V. HAYDEN
    PRINCIPAL DEPUTY DIRECTOR OF NATIONAL INTELLIGENCE
    AND
    FORMER DIRECTOR OF THE NATIONAL SECURITY AGENCY
    ADDRESS TO THE NATIONAL PRESS CLUB

    WHAT AMERICAN INTELLIGENCE & ESPECIALLY THE NSA HAVE BEEN DOING TO DEFEND THE NATION

    10:00 A.M. EST
    MONDAY, JANUARY 23, 2006

    http://www.dni.gov/release_letter_012306.html

  3. LJD says:

    O.K. DCL, I’ll admit some in Congress need to be investigated: Kennedy, Boxer, Reid, and the like. You’re right about war supporters also, if by ‘supporter’ you mean support for the terrorists or insurgents.

  4. Randall B says:

    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?”

    This is horribly misleading. He wasn’t briefing “Congress”–only a very small number of members who were not allowed to discuss the nature of the briefings with their constituents or many colleagues.

  5. Anderson says:

    “A pretty good line.” Jesus H. Christ.

    He *wasn’t* “briefing Congress.” He wasn’t even briefing the members of the intel committees as required by law. He was briefing 8 members and telling them they were required to keep quiet. Look at Sen. Rockefeller’s scared-kitten note.

    Drum’s comment is dead-on, and makes the case for this administration’s deliberate flouting of the law.

    –Now, to be contrary, “what if” they actually ARE data mining, but they feel the need to lie about it so that the bad guys won’t realize they’re doing it?

    Remember Eisenhower, unable to shut up the Dems about the “missile gap” because the intel that would’ve done so was classified (U-2 product).

  6. James Joyner says:

    Randall/Anderson: He briefed the senior Members with a need to know. The president does not have the authority to order Members to keep silent on what they believe to be violations of the law.

    If Rockefeller et. al. honestly believed what Bush was doing was illegal, they could have forced him to stop, threatening exposure or even (in the case of House Members) impeachment proceedings.

  7. Movie Guy says:

    James,

    The Members could have held closed sessions on the issue. I recall none on this issue.

    Impeachment would never fly.

  8. James Joyner says:

    Movie Guy,

    Agreed impeachment wasn’t going to happen. Merely noting it among the array of Congress’ power to deal with a lawless president.

    My strong inclination–with all the disclaimers appropriate from the known unknowns detailed above–is that the administration is operating within the boundaries of executive authority, if perhaps using some creative interpretations of the applicable laws. Given that the purposes were not nefarious and the history of executive power, that’s hardly impeachable.

  9. legion says:

    Well, James, that’s not the way Congress itself sees things:

    But membership also has its burdens. The “gang” — Republican Sen. Pat Roberts of Kansas and Rep. Peter Hoekstra of Michigan and Democrats Rockefeller and Rep. Jane Harman of California — is virtually gagged from discussing anything from meetings with anyone outside the group — not even other senators, staffers or lawyers with security clearance on the intelligence committees. “You can’t discuss it with anybody as long as you live,” Rockefeller said Monday.

    And for Rockefeller and Harmon, the senior Democrats on the Senate and House intelligence committees, respectively, membership can be even more problematic. If they want to object to anything the administration is doing, they’re forbidden from doing so publicly.

    Now, Sen Roberts seems to think Rockefeller had some method of recourse:

    Roberts listed options he said Rockefeller could have pursued, including discussing his concerns with Roberts and raising objections with the Vice President during various briefings. “Forgive me if I find this to be inconsistent and a bit disingenuous,” Roberts concluded in his statement.

    But seriously – raising objections with Roberts or Cheney?!? What exactly do you think that would have accomplished?

  10. Anderson says:

    Given that the purposes were not nefarious

    Well, that’s the $64,000 question, isn’t it?

    Whatever they were doing, it’s something they feared a Republican Congress, in the post-9/11 frenzy, wouldn’t agree to, for the good of the nation.

    Name one legitimate activity that would describe.

    The whole point of the freakin’ FISA court is that we don’t have to sit around wondering what the Administration was doing and whether it was legit and just trusting them to do what’s right.

  11. slickdpdx says:

    Re: Kevin Drum’s statement about burdens of proof. He assumes a lower burden is bad, even terrible (at least that’s what I infer from “lax”). The burden shifts appropriately as the degree to which the government intervenes shifts. Loosely put: Are we talking about incarcerating you – proof beyond a reasonable doubt. Are we talking about arresting you – probable cause. Are we talking about the need to gather additional information – reasonable basis (which tracks the language in the Bill of Rights).
    After all, another person can take your money or your land in a civil suit just by showing that, more likely than not, they are entitled to it!

  12. Wayne says:

    Like congress and the courts can keep a secret. The US is way to loose with their Intel. I strongly suspect that the natures of the taps are still unknown and would hurt national security if they were known. I guess it’s more important to take cheap shots at President Bush than to protect our country.

  13. Ron says:

    And I have to wonder, if this program is small and targeted, and is wiretapping as opposed to data mining. Why use NSA?

  14. Wayne says:

    The NSA is best suited and has the best record of handling highly sensitive Intelligence. They have fewer Valerie Blames. The person who leaked this information should be thrown in jail.

  15. DC Loser says:

    The NSA is used because SIGINT/ELINT/COMINT is in their “lane in the road” in the Intelligence Community.

  16. Ron says:

    Possibly I was unclear, I know in general what the NSA does. The fact that the NSA was used seems to support data mining of large amounts of communications instead of a few targeted wiretaps.

    My question was basically: why use someone like NSA for a task that doesn’t require their particular expertise.

  17. DC Loser says:

    Ron, data mining is not the primary mission of NSA. Their bread and butter mission is communications intercepts with linguists listening in on intercepted radio/phone conversations. Been doing that for over 50 years.

  18. Anderson says:

    Ron, I would dot the “i” on DC Loser’s comment by pointing out that only NSA seems to have the ability to intercept cell-phone calls from overseas and that kind of thing.