Stones Cry Out

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

So just a few months after 9/11, when most of America was waiting for the other shoe to drop, President Bush got ahead of the curve and got proactive in hopes of preventing another attack. Now it's 4 years later and we've had nothing. The other shoe hasn't dropped. As we'll see, some of the credit for that goes to this decision.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

I'm no Constitutional scholar, (and I doubt the "officials" are themselves) but I'm also not sure whether or not we're really taking about a Constitutional issue here. Since the calls were to or from international destinations, there might be an out here.

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

So the administration has, in fact, been modifying it's operations in light of these questions. And all in secret, mind you. These changes were made not so that they look better on the evening news, but because, apparently, of the legitimacy of the issues. This speaks well, I think, of an honest attempt to stay within the law, yet push things enough to keep our enemies at bay.

Back in 2002, Rep. Cynthia McKinney (D-GA) issued a statement that accused the Bush administration of not doing enough to prevent 9/11 and that they just sat on pre-9/11 intelligence in a "conspiracy of silence". This outrage ultimately brought about the highly-touted "9/11 Commission", which we now know was flawed with partisanship and unwilling to look at some hard facts ("Able Danger" among them). As I said back then,

[D]o you really think Ms. McKinney would have smiled with joy if we had done some serious racial profiling at airports and emptied all tall office buildings in order to prevent bin Laden's guided missiles from taking lives? Given the vague nature of what was known, and even if the exact dates, targets and MO were known, those types of measures would've been required to prevent the attacks. Cynthia doesn't like profiling now, and she wouldn't have approved of it then, but she sure does know how to may hay out of hindsight.

Scott Ott, at the news satire site ScrappleFace, uses his wonderful sense of humor to put it in perspective.

"I want to apologize for allowing the NSA to do these wiretaps after 9/11," the president said. "I'm sorry that I violated the privacy of some of these folks after terrorists launched attacks from our soil that killed 3,000 people, destroyed two skyscrapers and four jumbo jets, and punched a gaping hole in our military headquarters."

"My biggest regret," the president added, "is that the NSA didn't secretly tap these lines before 9/11. I hope my fellow Americans can forgive me."

I expect we'll hear Democrats coming out of the woodwork decrying this in the strongest of terms. Although, I'd bet that such pronouncements against Bush would have come anyway if another terrorism incident had taken place after 9/11, so you gotta take that for what it's worth. The President decided to do what it would take and was sensitive to and acted on questions of legality. I'd say that speaks well for him and how this operation was handled.

Back at the article, there have been positive results.

The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to this country, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.

It's very easy to criticize something from a position of comfort and safety.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

This is where I think things get interesting. Listen to the outrage from Democrats on this, and listen closely for their mentioning that in some cases where wholly domestic wiretaps were required, they did get warrants. Listen for their leaders to acknowledge that, yes, they were briefed on it, and sent multiple memos expression their specific concerns over legalities. Listen very closely. I'm not entirely sure we're going to get anything like that from them. Hold not thy breath.

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Yup, the Times held onto this urgent report for a year to make sure they got it right. And wouldn't you know, they released it on the very day the the Patriot Act renewal was scheduled to come for a vote in the Senate. Just coincidence, I'm sure. And it's just as much a coincidence that the author of the Times piece, James Risen, has a book coming out in a few weeks entitled "STATE OF WAR: The Secret History of the CIA and the Bush Administration". Pure accident of fate.

Later on, the piece goes into the idea that this may, in fact, have been legal based on a Congressional resolution.

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States ­ including American citizens, permanent legal residents, tourists and other foreigners ­ is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

If it's possible that this operation is legal, especially during wartime, then the leak of it ought to outrage those who got upset over the Plame kerfuffle. I''m sure it will outrage them, though I'm equally sure that outrage will be mostly misplaced.

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.

But now we've given the terrorists new information--that anything seized in the war could be used immediately--and now they'll change their precautions. One less opportunity to prevent the loss of life of potentially thousands.

Do the ends justify the means? No, but it appears that the Bush administration believed this was legal and even took steps to ensure that it was when questions were raised. Does it concern me when government acts in this manner? Yes, because as I noted, the tendency of government power is to expand. Those who continue to push to give the federal government more power and take it from the states should take note. However, one of the legitimate, enumerated powers of the federal government is to preserve and defend this nation. We are at war and it's good to keep that in mind before thoughtlessly dismissing this as some sort of power grab by an evil Republican President.

What we have here is yet another intelligence leak. Liberal blogs are already on the attack, but listen to how someone posting on the front page at the Daily Kos handles it.

No doubt we will see in coming weeks hair-splitting legal and constitutional debate over the precise wording of presidential orders, evocations of executive privilege and withholding of information in the name of national security, and mind-numbingly dull citations from dozens of obscure court cases. The administration will attempt to complicate, bluster, lie and attack its way out of answering for its spying on American citizens in the hopes that the electorate will give up on understanding the issue and will continue to sleep.

Essentially, SusanG is saying, "Never mind the legalities", which then, ironically, becomes here launching point for assuming it's unconstitutional, and get up in arms about it. The big picture and the salient points are eluding them.

(As an aside, further irony can be extracted from the fact that Democrats, in the case of Roe v Wade, consider precedent from court cases to be high holy words, but when there's a Republican in their sights, they're nothing but "dull citations".)

If we want to tackle precedent, John Hinderaker at Power Line notes this:

Under the Plame precedent, this case is a no-brainer. The intelligence officials who leaked to the Times should be identified, criminally prosecuted, and sent to prison.

Let's see how many Democrats come out for that. The "leak" of the name of a CIA employee who drove to and from Langley for more than 5 years (not exactly covert) is an outrage, but the leak of information that will help terrorists is no big deal and indeed should be encouraged. They've already made up their minds; blaming Bush is all that matters.