Sunday, March 30, 2008



The New York Times this week attempted to add historical perspective and justification for their infamous exposure of highly classified National Security Agency (NSA) terror surveillance programs.

The Times, of course, considers their illegal and arguably treasonous acts in revealing classified programs and information as valued public service, of a piece with other disclosures of classified information. Significantly, the editors at the Times only consider national secrets worthy of public exposure when they do maximum damage to their political opponents.

A.J. Strata provided excellent and reinforcing rebuttal to the Times self-serving rationalizations: NY Times Reporters Try To Defend Grave Mistake - Of Course Fail.

Strata, knowledgeable enough about telecommunications to make some educated deductions about NSA, presents better background on the issue than anything even attempted by the Times:
Prior to 9-11 the NSA monitored our enemies communications. Always had - that is its purpose to exist and over the years it had become incredibly good at it. If you think the computing power on your desk is impressive, realize most advances in computer capabilities come out of national defense efforts - and they are 10-20 years ahead of what is on the store shelves today. But one thing was very important in the NSA world. When it monitors a Target (and I use that term with purpose) it sweeps up everything coming and going to the Target (and over many mediums like phones, emails, etc). All those communications are between the Target and a Contact (and I use that term with purpose as well to distinguish from the Target). But you have to gather the communications to know who are the Contacts – you collect based on the Target’s ID (for packets it is source or destination ID depending which way the data is going). To know anything about the Contact you have to get to data and look up the Contact’s source or destination ID and see where it is located (US or outside). This is an immutable fact of communications in the digital age. And it is critical to getting the story right or wrong – which we all now know the NY Times got badly wrong.

In nearly all surveillance activities legal authority is provided on the Target, but the Contacts get swept up into it when they are in communications with the Target (all other communications for the Contact are not allowed to be monitored). There was one exception to this rule prior to 9-11 - the NSA could not retain or pass on details on Contacts that were located in the US that were communicating with Targets overseas. To know where the Contact is you have to trace back from the intercepted communications. To know where the other end is you have to find it. This is how it has been for decades prior to 9-11. This did not change after 9-11.

I know this to be the case because during my research on this story I found something in the congressional record from the days when the FISA statutes were being created. And the process was laid out clearly for all to see (from 1976):

4. “Incidental” Intercepts of Americans’ Communications

Although NSA does not now target communications of American citizens, groups, or organizations for interception by placing their names on watch lists, other selection criteria are used which result in NSA’s reviewing many communications to, from, or about an American. The initial interception of a stream of communications is analogous to a vacuum cleaner: NSA picks up all communications carried over a specific link that it is monitoring. The combination of this technology and the use of words to select communications of interest results in NSA analysts reviewing the international messages of American citizens, groups, and organizations for foreign intelligence.

The interception and subsequent processing of communications are conducted in a manner that minimizes the number of unwanted messages. Only after an analyst determines that the content of a message meets a legitimate requirement will it be disseminated to the interested intelligence agencies. In practically all cases, the name of an American citizen, group, or organization is deleted by NSA before a message is disseminated.

Internal NSA guidelines ensure that the decision to disseminate an intercepted communication is now made on the basis of the importance of the foreign intelligence it contains, not because a United States citizen, group, or organization is involved. This procedure is, of course, subject to change by internal NSA directives.

Two things to note here. First, these NSA procedures are open for the NSA to adjust - so Bush had authority in this area. Second, the NSA has to analyze the message to see if it is of any value - i.e., poses a threat to national security. If not it is tossed away. If it is then the next step, prior to 9-11, was to delete all information that could lead authorities to the person in country for further investigation. Prior to 9-11 if Atta was on the phone with Bin Laden and Bin Laden said “execute the attack” then only the part of the intercept dealing with the attack order could be disseminated beyond the gates of NSA. No information on where to find the person given the attack order, the name of the phone or email account used, nothing to stop the attack could be shared. This is the idiocy Bush fixed after 9-11. He allowed the NSA to provide the complete picture of the potential threat to the FBI. Nothing on the NSA side regarding monitoring changed. Nothing.
Precisely. And what the Times mangled beyond recognition in journalistic malpractice was a decision to allow NSA to cull through already data-mined data to retain indicators of terrorist activity.

One can reasonably make all kinds of arguments about whether potential evidence of terrorist activity involving US persons (redacted as USPERS in transcripts) can legitimately be passed to the FBI or other law enforcement. But if the Times wants to foster a debate, it first better make sure their reporters and editors take basic steps in acquiring rudimentary familiarity with the technology, telecommunications, legal issues and all related laws and executive orders, and intelligence operations as a whole. The worst way to facilitate a debate is to make ridiculous assumptions based on a flawed mischaracterization, and then flog endlessly for partisan advantage. (It might also be a step warranted by simple patriotism to find out whether the disclosure of classified information might damage national security, or constitute a felony.)

The Times has ever been adamant that we must have Walls of Separation between intelligence gathering and law enforcement. Better yet, they prefer that Intelligence operations have no walls at all, the better to ensure that the communications of not one hapless innocent will ever show up as an innocent contact with a known terrorist target. Yet, these are the same editors who vilified the Bush Administration in every possible way for the “intelligence gaps” that led to 9/11.

Those same critics who see all manner of evil in our fight against terrorism see nothing wrong in denying and ignoring constitutional protections when the targets are sex offenders. Don’t get me wrong – I think neither terrorists nor pedophiles should be exempted from the data mining of telecommunications, if these efforts can reveal their attempts to do evil.

But what hypocrisy for the Times, progressives, and other professional critics of the Bush Administration, to see excess only when their Adversary goes after terrorists, but never when their friends go after anybody and anything else.

(Via Protein Wisdom, via Memeorandum.)

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