[EPIC_IDOF] I Have An Essay on Salon

Bruce Schneier schneier at counterpane.com
Mon Dec 19 11:56:55 PST 2005


Uncle Sam is listening

Bush may have bypassed federal wiretap law to deploy more high-tech
methods of surveillance.

By Bruce Schneier

Dec. 20, 2005 | When President Bush directed the National Security
Agency to secretly eavesdrop on American citizens, he transferred an
authority previously under the purview of the Justice Department to
the Defense Department and bypassed the very laws put in place to
protect Americans against widespread government eavesdropping. The
reason may have been to tap the NSA's capability for data-mining and
widespread surveillance.

Illegal wiretapping of Americans is nothing new. In the 1950s and
'60s, the NSA intercepted every single telegram coming in or going
out of the United States. It conducted eavesdropping without a
warrant on behalf of the CIA and other agencies. Much of this became
public during the 1975 Church Committee hearings and resulted in the
now famous Foreign Intelligence Surveillance Act (FISA) of 1978.

The purpose of this law was to protect the American people by
regulating government eavesdropping. Like many laws limiting the
power of government, it relies on checks and balances: one branch of
the government watching the other. The law established a secret
court, the Foreign Intelligence Surveillance Court (FISC), and
empowered it to approve national-security-related eavesdropping
warrants. The Justice Department can request FISA warrants to monitor
foreign communications as well as communications by American
citizens, provided that they meet certain minimal criteria.

The FISC issued about 500 FISA warrants per year from 1979 through
1995, and has slowly increased subsequently -- 1,758 were issued in
2004. The process is designed for speed and even has provisions where
the Justice Department can wiretap first and ask for permission
later. In all that time, only four warrant requests were ever
rejected: all in 2003. (We don't know any details, of course, as the
court proceedings are secret.)

FISA warrants are carried out by the FBI, but in the days immediately
after the terrorist attacks, there was a widespread perception in
Washington that the FBI wasn't up to dealing with these new threats
-- they couldn't uncover plots in a timely manner. So instead the
Bush administration turned to the NSA. They had the tools, the
expertise, the experience, and so they were given the mission.

The NSA's ability to eavesdrop on communications is exemplified by a
technological capability called Echelon. Echelon is the world's
largest information vacuum cleaner, sucking up a staggering amount of
communications data -- satellite, microwave, fiber-optic, cellular,
and everything else -- from all over the world: an estimated 3
billion communications per day. These communications are then
processed through sophisticated data-mining technologies, looking for
simple phrases like "assassinate the president" as well as more
complicated communications patterns.

Supposedly Echelon only covers communications outside of the United
States. Although there is no evidence that the Bush administration
has employed Echelon to monitor communications to and from the U.S.,
this surveillance capability is probably exactly what the president
wanted and may explain why the administration sought to bypass the
FISA process of acquiring a warrant for searches.

Perhaps the NSA just didn't have any experience submitting FISA
warrants, so Bush unilaterally waived that requirement. And perhaps
Bush thought FISA was a hindrance -- in 2002 there was a widespread
but false believe that the FISC got in the way of the investigation
of Zacarias Moussaoui (the presumed "20th hijacker") -- and bypassed
the court for that reason.

Most likely, Bush wanted a whole new surveillance paradigm. You can
think of the FBI's capabilities as "retail surveillance": it
eavesdrops on a particular person or phone. The NSA, on the other
hand, conducts "wholesale surveillance." It, or more exactly its
computers, listen to everything. An example might be to feed the
computer a transcript of every conversation that mentions "Ayman al-
Zawahiri" and monitor everybody who uttered the name, as well as
everybody contacted. This type of surveillance was not anticipated in
FISA and raises all sorts of legal issues. As Sen. Rockefeller wrote
in a secret memo after being briefed on the program, it raises
"profound oversight issues," and it is unclear whether FISA would
have approved this activity.

It is also unclear whether Echelon-style eavesdropping would prevent
terrorist attacks. In the months before 9/11, Echelon noticed
considerable "chatter": bits of conversation suggesting some sort of
imminent attack. But because much of the planning for 9/11 occurred
face-to-face, analysts were unable to learn details.

The fundamental issue here is security, but it's not the security
most people think of. James Madison famously said: "If men were
angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be
necessary." 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.
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