About those surveillance programs...

From the Boston Globe, we see the following:

After a delay of more than a year, a government board appointed to guard Americans' privacy and civil liberties during the war on terror has been told the inner workings of the government's electronic eavesdropping program.

Members say they were impressed by the protections.

The briefing for the Privacy and Civil Liberties Oversight Board had been delayed because President Bush was concerned -- after several media leaks -- about widening the circle of people who knew exact details of the secret eavesdropping program.

<snip>

If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks, we'd be more reassured," said Lanny Davis , a former Clinton White House lawyer who is the board's lone liberal Democrat.

Alan Raul, a former Reagan White House lawyer and the board's vice chairman, said he also was impressed.

"We found there was a great appreciation inside government, both at the political and career levels, for protections on privacy and civil liberties," said Raul, author of a book of civil liberties. "In fact, I think the public may have an underappreciation for the degree of seriousness the government is giving these protections."

Domestic Surveillance

Victoria Toensing, a former Justice Department official and chief counsel for the Senate Intelligence Committee, has some comments about the NSA surveillance program.

In Article II, the Constitution establishes the president as commander in chief. As such he has inherent authority to conduct warrantless surveillance for the purpose of acquiring foreign intelligence information. He does not have the authority to close banks, seize steel mills, or raise our taxes; he does have it to get battlefield information about an enemy who has killed thousands of us on our soil and threatens to do so again.

No court opinion denies this constitutional authority to the president. All federal appellate courts that have considered the issue, including the FISA appeals court, have recognized such authority. The Supreme Court, over three decades ago, emphatically specified in the Keith case that it would leave this issue to another day. In doing so, the Court provided a clear indication that foreign surveillance is not domestic surveillance.

The Keith Court held that the president does not have authority to conduct warrantless searches of entities that are "domestic," i.e., where "[t]here is no evidence of any involvement, directly or indirectly of a foreign power." This decision, the Court stressed, makes "no judgment on the scope of the president's surveillance power with respect to the activities of foreign powers, within or without this country."

NSA wiretapping program

Brendan Minter, of Opinion Journal, doesn't think Bush is abusing power in the NSA wiretap program.

There is another check on executive power, however, that is being overlooked in this debate: personal accountability. If a long pattern of far-reaching abuse emerged in the wiretapping program authorized by this president, George W. Bush would be on the hook for it.

There is, of course, also a legal and constitutional argument to be made in favor of the wiretaps. Homeland Security Secretary Michael Chertoff, a former top Justice Department official who has also served as a federal judge and a prosecutor, dropped by The Wall Street Journal's offices recently and made a compelling legal and constitutional case for the wiretap program in four succinct points:

• The very language of the Fourth Amendment to the Constitution invites using a "reasonable" standard in deciding when to conduct searches.

• During the Cold War it was widely accepted that the federal government had the power to use radar to spot incoming Soviet bombers and missiles. Wiretaps are today's equivalent of the Cold War's radar because instead of Soviet missiles, we're confronting terrorists who would bring themselves and possibly small bombs in suitcases into the country.

• The FISA court itself has found that the Foreign Intelligence Surveillance Act does not curtail the president's constitutional ability to conduct warrantless searches.

• The government is not listening to phone conversations that take place entirely within the United States. Each one of the calls monitored involves someone either calling from or calling to a foreign number (in addition to involving at least one suspected al Qaeda operative). It's long been accepted that the federal government has a wide latitude to conduct searches at the nation's borders, which is why passenger luggage, container ships and other things can be searched as they cross into the country without first getting a warrant.

Loose Lips Sink Cell Phones?

The Washington Post has this story, headlined "File the Bin Laden Phone Leak Under 'Urban Myths'".

President Bush asserted this week that the news media published a U.S. government leak in 1998 about Osama bin Laden's use of a satellite phone, alerting the al Qaeda leader to government monitoring and prompting him to abandon the device. The story of the vicious leak that destroyed a valuable intelligence operation was first reported by a best-selling book, validated by the Sept. 11 commission and then repeated by the president. But it appears to be an urban myth.

Oh?

It seems the fact that Bin Laden used a satellite phone to communicate with his aides had been reported before any leaks took place. On one occasion, the cited source was the Taliban government in Afghanistan, on another it was Bin Laden himself.

Causal effects are hard to prove, but other factors could have persuaded bin Laden to turn off his satellite phone in August 1998. [Aug. 22, 1998] A day earlier, the United States had fired dozens of cruise missiles at his training camps, missing him by hours.

It occurs to me that merely stating that Bin Laden used a particular type of phone is one thing – stating that his phone is being tracked and/or listened to might be quite another.

It was not until Sept. 7, 1998 -- after bin Laden apparently stopped using his phone -- that a newspaper reported that the United States had intercepted his phone calls and obtained his voiceprint. U.S. authorities "used their communications intercept capacity to pick up calls placed by bin Laden on his Inmarsat satellite phone, despite his apparent use of electronic 'scramblers,' " the Los Angeles Times reported.

Not quite a smoking gun here. It's possible Bin Laden had decided to abandon the use of his phone after being shot at, and that the LA Times piece merely confirmed that the US was tracking his phone, and not just making Baghdad Bob style announcements about it.

Officials could not explain yesterday why they focused on the Washington Times story when other news organizations at the same time reported on the satellite phone -- and that the information was not particularly newsworthy. "You got me," said Benjamin, who was director for counterterrorism on the National Security Council staff at the time. "That was the understanding in the White House and the intelligence community. The story ran and the lights went out." Lee H. Hamilton, vice chairman of the Sept. 11 commission, gave a speech in October in which he said the leak "was terribly damaging." Yesterday, he said the commission relied on the testimony of three "very responsible, very senior intelligence officers," who he said "linked the Times story to the cessation of the use of the phone." He said they described it as a very serious leak.

I think the credibility of the Sept. 11 commission report may suffer from this.

(Update, 13:54 – Also see Ranting Profs on the same article.)

More on "domestic spying"

Jeff Goldstein has a nice, long summary of the news about the NSA affair.

Um...OK, if you say so.

With a heavy dose of irony, Noemie Emery observes the effect of Karl Rove's machinations behind the scenes. Buried in the middle of this piece is a single money graf.

Bush now has three gifts: (l) he has an out, in case there's another attack on the homeland (he tried, but his hands were tied by the Times and the Democrats); (2) he has still more sound bites--"We killed the Patriot Act!"--to add the pile that he had already, and (3), he has the chance to draw still more distinctions between the party of force and of public security; and the party that nitpicks, that is too legalistic, and that somehow always gives the benefit of the doubt to the criminal and/or the accused. In a showdown like this, put your cash on the party of force and security. Willie Horton was not a play on the race card, but a metaphor for the larger use-of-force issue. Does anyone doubt that if Dukakis were president when Saddam Hussein crossed the border, Kuwait and perhaps Saudi Arabia would be permanent parts of Iraq? Remember the Homeland Security Act in the 2002 midterms?

Say what you will about the piece as a whole (I think it's not really up to the usual – or even the Weekly – standard), actions have consequences, and these three items are reasonably foreseeable consequences of the whole to-do over "domestic spying".

I think the Democrats are in gote.

Sit on it!!!

The Weekly Standard has an article on the "spying scandal", making two points.

First: there's precious little evidence that such spying was actually in violation of any laws.

Second: the timing of the NY Times' article calls the paper's motives and practices into question.

Spy, the beloved country

William Kristol and Gary Schmidt offer their take on the "domestic spying" issue.

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant. Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

There is a balance of issues here. On one side is our civil liberties – the very thing terrorists want to destroy. These will be no less destroyed if we tear them down from the inside. On the other side is preventing another World Trade Center bombing, or worse.

Did the Administration violate the law? It is, at best, unclear.

...the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.)

A careful reading of the Fourth Amendment reveals that a search warrant may not be necessary in order to conduct a search.

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 requirement is that an Oath or affirmation be offered before a warrent is issued. The Amendment does not say that no search or seizure will take place without a warrant. And in fact, Findlaw.com has a section on valid searches and seizures without warrants.

It would appear this issue is more red herring than red flag.

However, it does highlight the power of the executive branch, and underscores the need for a good person to run it. It would be nice if this whole flap caused people to re-think their criteria for nominating and electing a President.

A Presidential election should not be a popularity contest, or worse, a beauty contest. Nominees should be selected, and candidates elected, based on criteria other than how they come across on camera. As it stands now, if the best candidate for the job had a bad speech impediment or a serious facial disfigurement, he wouldn't stand a chance of being elected, and that's a shame.

Spying on Americans

We have a new scandal. The Administration is spying on Americans!

Scott Johnson and Paul Mirengoff at Powerline have their takes on the story.

Questions for politicians

Paul Mirengoff at Powerline has some questions any candidates for Congress should be pressed to answer.

[The news media's] stated justification for publishing classified information on these matters is the need for debate over the administration's policy. If that, not animus towards the president, is the MSM's real reason, then it should promote such debate through a concerted effort to flush out the position of all those running for Congress in 2006 on the subject of intelligence gathering.

These are:

• Is the level of peril to the homeland is now significantly less than what it was shortly after 2001?
• Should the government adopt a less intrusive approach to intelligence gathering than the one it now employs?
• What is your position on each controversial provision of the Patriot Act. (Take them point by point.)
• Is there any investigative procedure or device that the federal government should be permitted to use to fight organized crime, but should not be permitted to use against suspected terrorists?
• What is your position on each interrogation technique used on terror suspects?
• Should sleep deprivation be allowed? Under what circumstances?
• Should slapping be allowed? Under what circumstances?
• Should waterboarding be allowed? Under what circumstances?
• (Repeat for all forms of putative "torture".)
• What length of delay is acceptable between the time the government learns about the telephone number of someone in the U.S. with whom a terrorists has been in communication and the time the government taps that phone?
• If it takes longer than that amount of time to obtain a court order, should the government wait for the court order or go ahead and tap the phone?

Paul's suspicion: the mainstream media don't want that debate to happen. And furthermore:

I suspect that, in fact, if Republicans promote such a debate, the MSM will accuse them of playing politics with national security.

Every move you make...

...I'll be watching you.

The aftermath of the London bombings were netcast. People nearby had camera phones capable of broadcasting video feed to the net, and they did so.

Shortly after bombs ripped through London's transportation system Thursday morning, U.S. and British television networks began airing the first footage of the aftermath – dim images of shaken commuters streaming through a smoky underground tunnel. The video provided an immediate and intimate look at the scene but was hardly polished or professional. That's because it was shot by passengers with mobile phones – the first widespread use of that technology in covering a major breaking news story....

That's a real Panopticon. And unlike the passive security camera network, every one of these cameras was wielded by a person on the spot, applying intelligence to decide what was interesting. The results were likely a lot better – and they'll only improve as the technology gets more capable and more ubiquitous.

...continued in full post...

In order to respond to a terrorist attack, rather than merely document it, it helps if police are on the scene, not in a video room watching monitors. (Big Brother's video system could do nothing without the ability to dispatch enforcers to pick up Winston Smith and detain him.)

Old-fashioned centralized efforts, like networks of security cameras, cost a lot of money and don't contribute much to this sort of a response. Getting citizens more involved in noticing, and responding, to terror threats is likely to do more good.

At the very least, a program of this type could be a parallel track for our anti-terrorism efforts. Put some money into programs that might work, and put more money into programs that demonstrate greater effectiveness.

And decentralized, public surveillance has another advantage: It's not controlled by Big Brother.

A network of security cameras can – and almost certainly will, judging from experience – be abused by authorities. A system that depends on the cooperation of thousands (or millions) of citizens, on the other hand, isn't so easily turned to oppression.