NSA Surveillance: What We Should All Agree On

 

I’ve received several requests to respond to Tom Meyer’s very thoughtful post about how national security hawks should respond to criticisms of the NSA surveillance program. The piece is mostly about political argument and the art of rhetoric — I’m not quite sure from the post what Tom himself thinks is the best policy — so I’ll have to respond broadly.

What makes this issue difficult is that the war is covert, against a network of non-state fighters who disguise their communications and movements as innocent, but have great destructive power aimed at civilians. We are pursuing the wartime goal of stopping enemy attacks before they happen.

Perhaps we can all agree on three facts.  

First, we are trying to find a needle in a haystack — those few messages buried in the mass of innocent communications that will lead us to a terrorist conspiracy.  

Second,  the criminal law approach — a warrant first, a search second — does not work in this situation (as we discovered on 9/11), because we would not have probable cause to search an individual target, whose identity we probably do not know and who has not, as of yet, done anything criminal.  

Third, the magnitude of destruction from a terrorist attack is far greater than a criminal enterprise.

With those circumstances in mind, I do not see what practical, effective alternative there is to some kind of broad electronic surveillance program. One can argue about the details, in terms of how many NSA employees should run it, how much congressional and judicial oversight there should be, etc. But if we are going to continue to prevent terrorist attacks on the U.S. homeland, the U.S. will need to be able to sort through the mass of innocent communications to find signals that will allow it to detect the attack before it happens.

If one accepts the three stipulations above, I simply don’t see an effective alternative.

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  1. Klaatu Inactive
    Klaatu
    @Klaatu

    Carey J.: You haven’t offered any example of any kind of SIGINT being used to stop any terror attack in the United States. At this point, I would settle for just about any SIGINT success story where one end of the “conversation” was in the United States and a terror attack in the US was stopped as a result.

    Unfortunately it is not like it is in the movies where a single piece of intelligence discovered at the last minute ends a terrorist threat.  There is never a single source of Intel let alone a single piece.  Intelligence operations rely on all sources of intelligence.  Some info comes from SIGINT, some from IMINT, some HUMINT, etc…  Unless you believe there has not been a single coordinated attempt to attack the US since 9/11, then you can be assured SIGINT played a role in stopping them whether by identifying a safe house in Pakistan, a financial support network in Miami, or a website being used to recruit or communicate with various cells.  OTOH, maybe you believe al-Qaeda just stopped trying to attack us. 

    • #61
  2. Carey J. Inactive
    Carey J.
    @CareyJ

    Klaatu:

    Unfortunately it is not like it is in the movies where a single piece of intelligence discovered at the last minute ends a terrorist threat. There is never a single source of Intel let alone a single piece. Intelligence operations rely on all sources of intelligence. Some info comes from SIGINT, some from IMINT, some HUMINT, etc… Unless you believe there has not been a single coordinated attempt to attack the US since 9/11, then you can be assured SIGINT played a role in stopping them whether by identifying a safe house in Pakistan, a financial support network in Miami, or a website being used to recruit or communicate with various cells. OTOH, maybe you believe al-Qaeda just stopped trying to attack us.

    I ask for one example of a SIGINT intelligence coup where any communication into the US from abroad tipped us off to a terrorist plot, and I what get is platitudes and a lecture about the difference between real life and movies. You obviously don’t have an example to give. I think I’ve made my point. Thank you for playing.

    • #62
  3. Klaatu Inactive
    Klaatu
    @Klaatu

    Carey J.: You obviously don’t have an example to give. I think I’ve made my point. Thank you for playing.

     Of course I do not have a specific example to share.  If I remembered the specifics of any, I could not share them here.  Are you honestly that naive?

    • #63
  4. user_96427 Contributor
    user_96427
    @tommeyer

    Late to my own party as usual.

    First, many thanks to Professor Yoo for the response; I wasn’t expecting that and it as much appreciated.  Only on Ricochet.

    That said, I think there really is a major gap in our understanding of the issue, particularly pertaining to this point:

    John Yoo: Second,  the criminal law approach — a warrant first, a search second — does not work in this situation (as we discovered on 9/11), because we would not have probable cause to search an individual target, whose identity we probably do not know and who has not, as of yet, done anything criminal.  

    That certainly wasn’t the lesson I gleaned from 9/11.  As others have mentioned, the failure to stop the conspiracy beforehand had more to do with walls of separation between our agencies — a well-intended policy that seems to have been taken too far — so that what evidence there was was not followed-up on, coupled with an overly lax immigration policy (if the last 12 years have taught us anything, it’s that we need to be scrupulous when it comes to immigration by Muslims.

    • #64
  5. user_96427 Contributor
    user_96427
    @tommeyer

    Frank Soto: We are not quite going to agree on this.  911 was the extreme aberration in terms of the effectiveness of such attacks. Furthermore, that vulnerability was addressed by locking the cockpit door of commercial airliners, and the general awareness now that will cause the passengers to resist if any small group of people ever attempted to hijack a plane. Most terrorist attacks cause violence on par with criminal enterprises, except they occur less frequently.

    I was going to agree with this, though Klaatu is correct to point out later on that this leaves out the London, Madrid, and Bali bombings, all of which easily count as major terrorist attacks against important allies (most of the casualties in Bali were Australians, Brits, and Americans).

    Even then, though, none of these reached quite the scale of 9/11, either in terms of death or destruction.  As Frank said, that appears to have been a true outlier whose tactics were invalidated by the time passengers began fighting back on United 93.

    • #65
  6. WI Con Member
    WI Con
    @WICon

    Klaatu:

    WI Con: Hassan’s communications with Awlaki. Awlaki doesn’t count as being part of a terrorist network? The Tsarneov brothers and their Chechen ties aren’t considered to be part of a terrorist network but American citizens, with no contact with any people/groups like the examples cited have their met data “hoovered up” on what basis exactly?

    No, his one on one communication with al-Awlaki does not constitute a network. Hassan, to the best of our knowledge operated independently. He was not part of a cell or a network. He was not receiving funding, training, resources, or information from others.As far as I know the same can be said for the Tsarneov brothers. Their data was collected just like everyone else but as either no one queried the database for their contacts or there were no significant links found to anyone else.

     If those aren’t considered ‘networks’ then why monitor nearly everyone? What is the point? Both Cary J and I have given you the same examples you’ve demanded then you dismiss them out of hand. You have been asked to provide examples yourself and have not.   

    • #66
  7. user_96427 Contributor
    user_96427
    @tommeyer

    Klaatu:

    Of course I do not have a specific example to share. If I remembered the specifics of any, I could not share them here. Are you honestly that naive?

    This is precisely what I was describing in #3-4 of my original piece: Americans are being asked to approve policies without being given the information necessary to make a rational decisions.  Every time we ask for specifics, we’re told that it’s very complicated, you can’t really get into the details, but — trust us! — it’s worth it.

    Here’s the problem: many Americans no longer trust that the tactics being used to protect us are worth the costs to liberty and privacy.  As I said before, that may well be unfair , but you can either hold out and hope Americans come around to you’re way of thinking, or you can address their concerns and speak more openly about the costs and benefits of various programs and tactics.  Doing so may require you to disclose more information than you’re comfortable, but not disclosing it may risk the programs themselves.

    * That’s a plural “you”: obviously Klaatu is not in a position to disclose state secrets.

    • #67
  8. Klaatu Inactive
    Klaatu
    @Klaatu

    Tom Meyer: This is precisely what I was describing in #3-4 of my original piece: Americans are being asked to approve policies without being given the information necessary to make a rational decisions.  Every time we ask for specifics, we’re told that it’s very complicated, you can’t really get into the details, but — trust us! — it’s worth it.

    This is a feature not a bug in a republican system.  It has long been understood and accepted there are issues on which the general public will not and cannot have all the information available to make a responsible decision so we put our trust in the people we elect to represent us to have access to this information and make such decisions.  In our system, we mitigate the inherent danger in this by providing for checks and oversight by competting branches of government.  If the people can no longer trust their representatives, that is a much larger problem that will not be remedied by providing sensitive information to our enemies.

    • #68
  9. Klaatu Inactive
    Klaatu
    @Klaatu

    WI Con:  If those aren’t considered ‘networks’ then why monitor nearly everyone? What is the point? Both Cary J and I have given you the same examples you’ve demanded then you dismiss them out of hand. You have been asked to provide examples yourself and have not.   

    Nearly everyone is not monitored.  Records of your calls are an tiny portion of a very large set of records.  The portion related to you is not tracked, monitored, or even attributed to you without a different and specific court order.

    The examples are not networks be because they do not include more than one or two people.  Do you honestly think an analyst should have considered calls between two brothers as worthy of further investigation?

    • #69
  10. user_96427 Contributor
    user_96427
    @tommeyer

    Klaatu: The examples are not networks be because they do not include more than one or two people.  Do you honestly think an analyst should have considered calls between two brothers as worthy of further investigation?

    I would think that the tip-off from Russian intelligence, coupled with his six-month trip to the Caucuses would warrant follow-up.  What’s the point of SIGINT in a post-9/11 world if not to follow-up on non-citizen residents who are Muslim, travel abroad for six months while unemployed, and return home fully-bearded?

    (Though the same evidence could just as easily prompt one to ask “What’s the point of an immigration system?”)

    • #70
  11. Klaatu Inactive
    Klaatu
    @Klaatu

    Tom Meyer:

    Klaatu: The examples are not networks be because they do not include more than one or two people. Do you honestly think an analyst should have considered calls between two brothers as worthy of further investigation?

    I would think that the tip-off from Russian intelligence, coupled with his six-month trip to the Caucuses would warrant follow-up. What’s the point of SIGINT in a post-9/11 world if not to follow-up on non-citizen residents who are Muslim, travel abroad for six months while unemployed, and return home fully-bearded?

    (Though the same evidence could just as easily prompt one to ask “What’s the point of an immigration system?”)

    My understanding is the FBI did follow up.  Whether the FBI informed the NSA of the tip or requested the NSA analyze his phone records is not known.  We also do not know whether there was anything of interest in those records.

    • #71
  12. WI Con Member
    WI Con
    @WICon

    Klaatu:

    WI Con: If those aren’t considered ‘networks’ then why monitor nearly everyone? What is the point? Both Cary J and I have given you the same examples you’ve demanded then you dismiss them out of hand. You have been asked to provide examples yourself and have not.

    Nearly everyone is not monitored. Records of your calls are an tiny portion of a very large set of records. The portion related to you is not tracked, monitored, or even attributed to you without a different and specific court order.

    The examples are not networks be because they do not include more than one or two people. Do you honestly think an analyst should have considered calls between two brothers as worthy of further investigation?

     If you are referring to the Tsarneov (sp?) brothers after the Russians had alerted  us, yes. When the Underwear Bomber’s father alerted us, yes – I suspect the NSA entered the phone numbers into the system. I’d expect the same for Hassan.

    I don’t expect to be subject to the same scrutiny without some reasonable trigger, not warrant mind you but some reasonable trigger or reason for the scrutiny.

    • #72
  13. Klaatu Inactive
    Klaatu
    @Klaatu

    WI Con:  If you are referring to the Tsarneov (sp?) brothers after the Russians had alerted  us, yes. When the Underwear Bomber’s father alerted us, yes – I suspect the NSA entered the phone numbers into the system. I’d expect the same for Hassan.

    I don’t expect to be subject to the same scrutiny without some reasonable trigger, not warrant mind you but some reasonable trigger or reason for the scrutiny.

    Again, I have no idea of the FBI shared to information re: the Tsarneov brothers with the NSA.  Had they and the NSA queried the database under discussion, the fact the brothers regularly called each other would not have been noteworthy.  

    The information is used to discover patterns and build out social networks.  Person A is of interest and has a relationship with Person B.  Person C  is also a person of interest unrelated to A but has also a relationship B.  Check person B and discover he has relationships with other unrelated suspects….  It is a tool analysts use to identify members of cells, determine leadership of the cell, who the cell leader reports to.

    • #73
  14. user_96427 Contributor
    user_96427
    @tommeyer

    Klaatu:

    The information is used to discover patterns and build out social networks. Person A is of interest and has a relationship with Person B. Person C is also a person of interest unrelated to A but has also a relationship B. Check person B and discover he has relationships with other unrelated suspects…. It is a tool analysts use to identify members of cells, determine leadership of the cell, who the cell leader reports to.

    While I grant this kind of information is more easily and speedily acquired without a warrant, I don’t see why it can’t be acquired without a warrant.

    • #74
  15. Klaatu Inactive
    Klaatu
    @Klaatu

    Tom Meyer: While I grant this kind of information is more easily and speedily acquired without a warrant, I don’t see why it can’t be acquired without a warrant.

    From a constitutional standpoint I do not believe the type of information at issue falls under the 4th Amendment regardless of the merits of this specific NSA program.  

    As a practical matter, there would be no way to look back in time if a warrant was required.  I may be able to tell who person A calls in the future but would have no way of knowing he called person B eight months ago.

    • #75
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