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February 04, 2006

Is The Outrage Over "Domestic Spying" Wrongly Directed

Over and over we are bombarded with outraged statements from various public figures who are certain the secret NSA surveillance program was unconstitutional and the President violated the law by allowing warrantless wiretaps on persons located within the United States who communicate with our enemies during time of war.

The Coalition of the Outraged allege that Congress was left in the dark and the President had no right to bypass FISA statutes, which are not only outdated but fail to specifically address the type of intelligence-gathering being conducted by the NSA. Victoria Toensing, who as part of her duties was actively involved in FISA oversight shortly after the enabling legislation was passed, comments:

FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?

Apparently so. So what does the head of Congress'intelligence oversight committee think? Apparently, he begs to differ with critics of the "domestic spying" program:

Senate Intelligence Committee Chairman Pat Roberts said Friday the Bush administration's domestic spying is within the president's inherent power under the Constitution, and he rejected criticism that Congress was kept in the dark about it.

The program is "legal, necessary and reasonable," the Kansas Republican wrote in a 19-page letter, taking a particularly expansive view of the president's authority for the warrantless surveillance.

"Congress, by statute, cannot extinguish a core constitutional authority of the president," Roberts wrote.

Presidents from George Washington to George W. Bush have intercepted communications to ascertain enemy threats to national security, Roberts told the chairman and ranking Democrat on the Senate Judiciary Committee. Roberts' letter came just three days before that panel was to question Attorney General Alberto Gonzales about the surveillance.

Roberts said the Bush administration's notification of just eight members of Congress fulfilled the legal requirement that the legislative branch be kept fully and currently informed.

Roberts has received a dozen briefings on the program; the committee's ranking Democrat, Sen. Jay Rockefeller of West Virginia, half that many.

Meanwhile, the media blithely ignore the question of whether James Risen and the NY Times violated the law when they deliberately bypassed the Congressional intelligence oversight committee, choosing instead to publish classified information during wartime. They excuse their intentional breach of their legal and civic duty by saying the President broke the law. There are two problems with this argument:

First of all, two wrongs do not make a right. If we accept the media's argument, the President would be within his rights to sidestep Congress altogether on the grounds that Congresspersons have leaked classified information in the past.

Secondly, it has not been established that the President broke the law. The media are assuming facts not in evidence to excuse their own lawbreaking.

So, what law did the Times and Mr. Risen break? As it turns out, a law specifically crafted to deal with this precise situation:

...in 1950, as Edgar and Schmidt also note, in the wake of a series of cold-war espionage cases, and with the Chicago Tribune episode still fresh in its mind, Congress added a very clear provision to the U.S. Criminal Code dealing specifically with “communications intelligence”—exactly the area reported on by the Times and James Risen. Here is the section in full, with emphasis added to those words and passages applicable to the conduct of the New York Times:

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

(b) As used in this subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients; The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

It simply does not get any clearer than this.

The Times and James Risen deliberately broke a law that clearly and specifically outlaws their actions, based only on their informal and unverified opinion that the President was exceeding his authority.

The last time supposedly "classified" information was alleged to have been leaked by members of the administration, the media demanded a special prosecutor. Several prominent media outlets subsequently had to be forced to cooperate with the prosecutor they themselves had demanded.

The media demand to have classified "leaks" investigated and then place themselves above the law when when that investigation requires their cooperation. They chide the President for supposedly ignoring laws passed by Congress, but demand the right to break the law with impugnity.

Yet we're supposed to trust them? Where's the outrage?

Posted by Cassandra at February 4, 2006 09:39 AM


Yesss...it's the old "Do as I say, not as I do" mentality.

Posted by: camojack [TypeKey Profile Page] at February 4, 2006 03:19 PM

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