NSA: It's not the Privacy - it's the Incompetence

Today the Washington Post Reports that 66% of Americans don't mind the idea that the government might be tracking their phone calls. And that 63% felt "it was more important to investigate potential terrorist threats "even if it intrudes on privacy.

Apparently many people agree, siding with Bill O'Reilly -"I Don't Care, as long as they aren't listening to the calls" (of course not Bill, we all know about your Falafeling ways already) and with Dick Morris who claims "This is Bush's Issue, it can't hurt him".

The assumption I guess is that if USA Today hadn't told us our calls were being tracked, we wouldn't know our calls are being track and outta sight is basically outta mind. If you can't see the Peeping Tom staring at you through the windows - why worry about him?

Yeah sure, but we already know that the NSA does record the calls, it does so automatically. Better put away the Falafel Bill...

The normal procedure for the NSA's Echelon system is to essentially trap all calls and search them for keywords that indicate they may involve a person of interest. If a keyword appears, the call is saved - if it does not, it is deleted. If the call is of "interest", but an American is involved - that Americans name would be redacted and the file destroyed until surveillance was authorized by the FISA court. But even before 9/11 this was no longer the case according to Truthout.org

What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.

But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.

Instead of deleting the call information - they kept it and a recorded of the number and names. For further detail let's take a trip in the way back Machine - all the way back to January when former NSA SIGINT Officer Russel Tice was interview by Amy Goodman of Democracy Now.

First lets establish the legal issues - is it ok for the NSA to Spy on Americans (whether listening to their calls or tracking their numbers?)

RUSSELL TICE: Well, as far as an intelligence officer, especially a SIGINT officer at N.S.A., we're taught from very early on in our careers that you just do not do this. This is probably the number one commandment of the SIGINT Ten Commandments as a SIGINT officer. You will not spy on Americans. It is drilled into our head over and over and over again in security briefings, at least twice a year, where you ultimately have to sign a paper that says you have gotten the briefing. Everyone at N.S.A. who's a SIGINT officer knows that you do not do this. Ultimately, so do the leaders of N.S.A., and apparently the leaders of N.S.A. have decided that they were just going to go against the tenets of something that's a gospel to a SIGINT officer.

Ok, so that's what they're told but what are the legal issues involved in this kind of tracking of phone numbers and call durations only according to the American Constitution Society?

It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c).

In the case of the NSA, the Foreign Intelligence Surveillance Court would have to issue such an order. It does not appear that it has done so, apparently because the NSA worried that it would not approve such wholesale collection of information.

Moreover, if the NSA obtained such information in real time - using a pen register or trap and trace device - those who did so would be guilty of criminal conduct. (The law on pen registers and trap and trace devices provides that no one may use such a device without obtaining a court order either under the criminal wiretap law or the Foreign Intelligence Surveillance Act. 18 USC 3121.)

If the NSA used a pen register or trap and trace device in real time, it was required to obtain an order from the FISA court, either under the specific pen register provisions, 50 USC 1841 et seq. or under the provisions for electronic surveillance generally, 50 USC 1801 et seq. Under the electronic surveillance provisions, the NSA would have to show the court that the person whose calls were being targeted was an agent of a foreign power. Under the pen register provision, the NSA would have to show the court that the information was relevant to an ongoing terrorism investigation. Despite the low standard for a pen register, it is unlikely that the FISA court would have approved wholesale pen registers on every phone in America.
If the NSA obtained stored records, rather using a real time pen register, it would have to obtain an order from the FISA court under section 215 of the Patriot Act. That section contained an even lower standard for obtaining information.

Ok, so have we basically established that thier is NO POSSIBLE WAY that this is legal for the government. What about the telecom carries, do they have some legal liability? Back to Russell.

AMY GOODMAN: What about the telecoms, the telecommunications corporations working with the Bush administration to open up a back door to eavesdropping, to wiretapping?

RUSSELL TICE: If that was done and, you know, I use a big "if" here, and, remember, I can't tell you what I know of how N.S.A. does its business, but I can use the wiggle words like "if" and scenarios that don't incorporate specifics, but nonetheless, if U.S. gateways and junction points in the United States were used to siphon off information, I would think that the corporate executives of these companies need to be held accountable, as well, because they would certainly also know that what they're doing is wrong and illegal. And if they have some sort of court order or some sort of paper or something signed from some government official, Congress needs to look at those papers and look at the bottom line and see whose signature is there. And these corporations know that this is illegal, as well. So everyone needs to be held accountable in this mess.

What about the practically of this type of program, what good are phone number only when what you really want to know are operational plans, details, whose going to attack what and where? Russell sheds some light on this as well.

AMY GOODMAN: We're talking to Russell Tice, former intelligence agent with the National Security Agency, worked at the N.S.A. up until May of 2005. What is data mining?

RUSSELL TICE: Data mining is a means by which you -- you have information, and you go searching for all associated elements of that information in whatever sort of data banks or databases that you put together with information. So if you have a phone number and you want to associate it with, say, a terrorist or something, and you want to associate it with, you know, `Who is this terrorist talking to?' you start doing data on what sort of information or what sort of numbers does that person call or the frequency of time, that sort of thing. And you start basically putting together a bubble chart of, you know, where everybody is.

A bubble chart of whose talking to whom, eh? Wouldn't that bne a neat thing to have -- too bad that'll never happen.

Lord help you if you've got a wrong phone call from one of these guys, a terrorist overseas or something, and you're American. You're liable to have the F.B.I. camping out your doorstep, apparently, from everything that's going on. But it's basically a way of searching all of the data that exists, and that's things like credit card records and driver's license, anything that you can get your hands on and try to associate it with some activity. I think if we were doing that overseas with known information, it would be a good thing if we're pinning them down. But ultimately, when we're using that on -- if we're using that with U.S. databases, then ultimately, once again, the American people are -- their civil rights are being violated.

It seems to me that Russell knew damn well what was going on here, but for security reasons kept things hypothetical, notice that he slipped up at the end there?

Well, could this kind of thing happen to me or you? Well, it happened to Russel already...

AMY GOODMAN: Do you expect you are being monitored, surveilled, wiretapped right now?

RUSSELL TICE: Yes, I do. As a matter of fact, in - you know, sometimes you just don't know. And being, you know -- what they've basically accused me of, I can't just walk around thinking that everybody is looking at my heels and are following me around. But in one scenario I turned the tables on someone I thought was following me, and he ducked into a convenience store, and I just walked down there -- and I saw him out of my peripheral vision -- and I basically walked down to where he ducked into and in the store, I walked up behind him. He was buying a cup of coffee, and he had a Glock on his hip and his F.B.I. badge. I don't think it takes a rocket scientist to figure out what was going on there.

The point about surveillance is that eventually they're going to take action - the FBI or the DIA are going to be called in order to investigate a "person of interest" that has popped up on the NSA Bubble Diagram. And the real question is, how often are they going to be targetting innocent Americans who show up because they happen to live in the same Pizza Hut Delivery Area as a possible Terrorist sympathizer? And also, just how narrowly defined are we casting the term "supporters of terrorism" when the Administration and it's supporters regularly throws out the T-Word (Treason) against just about anyone who disagrees with them?

President Bush : War Critics are giving aid and comfort to the enemy

Rush Limbaugh : Did [Joe] Wilson Commit Treason?

Michael Reagan : Howard Dean should be arrested for Treason...

Pat Robertson : Democratic War Criticism is Treason

Yet again, we only have to go back to January and a report by the New York Times to see just how far affield this has already gone...

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for the eavesdropping program, which did not seek court warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but ultimately deferred to Justice Department legal opinions, the official said.

Surely, though all this hightech NUMB3RS-like analysis much have at least yeilded some high probability targets right?

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

F.B.I. field agents, who were not told of the domestic surveillance programs, complained they often were given no information about why names or numbers had come under suspicion. A former senior prosecutor, who was familiar with the eavesdropping programs, said intelligence officials turning over the tips "would always say that we had information whose source we can't share, but it indicates that this person has been communicating with a suspected Al Qaeda operative." He said, "I would always wonder, what does 'suspected' mean?"

In response to the F.B.I. complaints, N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said. Some tips were considered so hot that they were carried by hand to top F.B.I. officials. But in bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more "calls to Pizza Hut," one official, who supervised field agents, said.

It was clear even back in January that if the program were as "limited and focused" as the President claimed, how were the FBI getting thousands upon thousands of bogus phone numbers, emails address and names?

Now we know how.

As to exactly who is "suspected" it seem that it's mostly Quakers, Peace Activists and members of Greenpeace. Y'know - really dangerous people.

The downside of this isn't the fact that the FBI is going to be shadowing you or your friends -- it's the fact that the FBI won't be too busy shadowing you, or your local teachers and Quakers to pay attention the next Moussuoui or Padilla.

We've turned the NSA into the Digital Chicken-Little armed with the super-computers that cried "Wolf". It's difficult to argue that we haven't been hit again - as long as you don't count the Anthraxing of Congress - simply because it takes years for Bin Laden to plan an attack or just plain dumb-ass luck.

Meanwhile we're blowing off $Billions of tax payer dollars on this boon-doogle and 66% of the public doesn't think it matters? We you realize this is the same Bush Administration that gave us the failed WMD search, Iraq Reconstruction, the failed response to Katrina and Gulf Coast Reconstruction, the Medicare Prescription Drug Plan and Terry Schiavo-Gate, it becomes clear their incompetence knows no bounds and that hundreds of thousands of people have already suffered as a direct result of it.

It matters.

Vyan