President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.The story, made public by the NYT last night (no resting on your Iraqi election laurels, Mr. President) after that paper held it over the last year for further investigation, came as Congress was engrossed in debate over renewing various aspects of the Patriot Act. Needless to say, this revelation dealt a critical blow to the Act's supporters:
The Senate on Friday rejected attempts to reauthorize several provisions of the USA Patriot Act as infringing too much on Americans' privacy and liberty, dealing a huge defeat to the Bush administration and Republican leaders.The National Security Agency, created under President Truman in 1952, is the largest intelligence agency in the world. Its primary work is in cryptanalysis (code breaking) and eavesdropping via a variety of media including radio, telephone, and the internet. Like the CIA, it works primarily outside of the US. In 2002, on the heels of 9/11, Bush signed an executive order giving the NSA the right to monitor American citizens communicating with someone outside the US without first obtaining a search warrant. If true, it's certainly furtive and possibly even illegal.
What is so flummoxing is why the NSA decided to go around the judicial search warrant:
While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said.In reaction to similar perceived abuses by administrations in the Vietnam era, Congress enacted the Federal Intelligence Surveillance Act. FISA mandates that the US government request judicial authorization before engaging in clandestine monitoring activity of American citizens. After 9/11, the FISA judiciary court would presumably err on the side of monitoring and give the NSA plenty of leeway. Indeed, according to James Badford who has written two books on the NSA, the FISA court has only refused to grant one warrant in its almost thirty year history. If any obstruction did occur, the Bush Administration could have gone public with accusations of sedition against the court for leaving the country vulnerable by refusing to comply at a time when so much of the country was behind him.
The Bush Administration has yet to respond formally to the revelation, but this news appears to me a tremendous blow to the government's ability to aggressively gather information from potentially hostile sources. And coming on the eve of this news was the President's capitulation to Senator McCain's push for so-called anti-torture measures, banning coercive techniques like waterboarding (even though some of our finest are subject to it in SERE training).
Like most fair-minded average Joes, I hold a tenuous opinion on the interrogation question. I simply do not know and can only speculate on what I read, realizing that I'm too far removed from the practice to know the totality of what it feels like or how effective the various techniques are at extracting information. But Heather Mac Donald leads me to generally support coercive techniques:
This doesn't surprise me. Muslims are probably hard nuts to crack, given the austerity of orthodox Islam. If detainees do not fear what their captors might do to them, extracting information will become a virtual impossibility. Swinging in the other direction by acting chummy is unlikely to work either if the captive is evenly remotely pious--and the ones with valuable information are going to be the most devoted to jihad.
"It didn’t take long for interrogators in the war on terror to realize that their part was not going according to script. Pentagon doctrine, honed over decades of cold-war planning, held that 95 percent of prisoners would break upon straightforward questioning. Interrogators in Afghanistan, and later in Cuba and Iraq, found just the opposite: virtually none of the terror detainees was giving up information—not in response to direct questioning, and not in response to army-approved psychological gambits for prisoners of war...
Army doctrine gives interrogators 16 “approaches” to induce prisoners of war to divulge critical information. Sporting names like “Pride and Ego Down” and “Fear Up Harsh,” these approaches aim to exploit a detainee’s self-love, allegiance to or resentment of comrades, or sense of futility. Applied in the right combination, they will work on nearly everyone, the intelligence soldiers had learned in their training...
Even if a prisoner had not previously studied American detention policies before arriving at Kandahar, he soon figured them out. “It became very clear very early on to the detainees that the Americans were just going to have them sit there,” recalls interrogator Joe Martin (a pseudonym). “They realized: ‘The Americans will give us our Holy Book, they’ll draw lines on the floor showing us where to pray, we’ll get three meals a day with fresh fruit, do Jazzercise with the guards, . . . we can wait them out.’"
They've figured out long ago that if a terrorist falls into Western hands, the first thing to do is allege that abuse has taken place. And then do so over and over, more vociferously each time (from a confiscated Al Qaeda training manual):
At the beginning of the trial, once more the brothers must insist on proving that torture was inflicted on them by State Security [investigators] before the judge. Complain [to the court] of mistreatment while in prison... Take advantage of visits to communicate with brothers outside prison and exchange informationRecent events do not bode well for our ability to combat Islamic terrorism. In addition to the borderline-illegal executive order, there's the alleged CIA secret prisons and the Abu Ghraib prisoner abuse that won't go away. We've pulled a lot out of KSM, among others, with the use of coercive measures and other aggressive tactics. Dropping them is not going to be innocuous. The NSA's surreptitious work that circumvented FISA has been effective in some cases:
that may be helpful to them in their work outside prison [according to what occurred during the investigations]... Victory is achieved by obeying Almighty and Glorious God and because of their many sins.
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said.Mark Bowden suggests a pragmatic 'compromise', but it's ethically distasteful:
Interrogators should have clear boundaries with which to work--it's unjust to ask them to risk their careers by dealing in gradations that they are not clear on. This dilemma highlights how difficult it is to retain personal freedoms in an atmosphere of terrorism on a massive scale. There's a trade off: More security for less freedom and vice versa. It's unsettling.
The Bush Administration has adopted exactly the right posture on the matter. Candor and consistency are not always public virtues. Torture is a crime against humanity, but coercion is an issue that is rightly handled with a wink, or even a touch of hypocrisy; it should be banned but also quietly practiced. Those who protest coercive methods will exaggerate their horrors, which is good: it generates a useful climate of fear. It is wise of the President to reiterate U.S. support for international agreements banning torture, and it is wise for American interrogators to employ whatever coercive methods work. It is also smart not to discuss the matter with anyone.
What we certainly can do, however, is fortify our own borders. Build a wall on the southern border and possibly the northern one as well (around $30 billion, or less than a year in Iraq), aggressively check freight ships at the ports, hammer companies who hire illegals, and deport those non-residents who are here illegally. Institute a merit immigration program that allows us to take the pick of the litter from the some 1.5 billion people who'd like to come to the US.
We should also look hard at ending or severely limiting immigration from the Middle East and Islamic parts of South Asia. The recent riots in France and Australia highlight how resistant Islamic culture is to assimilation. They abuse the welfare state, congregate in ethnic enclaves, and attack those hostile to their way of life. These countries are characterized by moderately low IQs--we could more than compensate for them by rolling the red carpet out to more people from Europe and East Asia. It wouldn't be a perfect filter, but it would help.
++Added++The President responded to the revelation today (December 17):
President Bush said Saturday he has no intention of stopping his personal authorizations of a post-Sept. 11 secret eavesdropping program in the U.S., lashing out at those involved in revealing it while defending it as crucial to preventing future attacks...So it looks like the Administration is going to challenge the presumption by some that the executive order and subsequent reviews of the program were illegal.
Bush said the program was narrowly designed and used "consistent with U.S. law and the Constitution." He said it is used only to intercept the international communications of people inside the United States who have been determined to have "a clear link" to al-Qaida or related terrorist organizations.