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Method of Oppression

Monday, May 15, 2006

An observation on government's new method of oppression:
1. The National Security Agency comes up with a program for collecting intelligence that is legally shaky at best. After the 9/11 event, the NSA decides that the rules permitting them to conduct their business as usual weren't good enough. They wanted more.

September 11th didn't change [the question: How do we balance the legitimate need for foreign intelligence with our responsibility to protect individual privacy rights?]. But it did change some things. This ability to intercept communication -- we commonly refer to it as Signals Intelligence or SIGINT. SIGINT is a complex business, with operational and technological and legal imperatives often intersecting and overlapping. There's routinely some freedom of action -- within the law -- to adjust operations. After the attacks, I exercised some options I've always had that collectively better prepared us to defend the homeland.

Look, let me talk for a minute about this, okay? Because a big gap in the current understanding, a big gap in the current debate is what's standard? What is it that NSA does routinely? Where we set the threshold, for example, for what constitutes inherent foreign intelligence value? That's what we're directed to collect. That's what we're required to limit ourselves to -- inherent foreign intelligence value. Where we set that threshold, for example, in reports involving a U.S. person shapes how we do our job, shapes how we collect, shapes how we report. The American SIGINT system, in the normal course of foreign intelligence activities, inevitably captures this kind of information, information to, from or about what we call a U.S. person. And by the way, "U.S. person" routinely includes anyone in the United States, citizen or not.  

2. The NSA folks take their program over to the Department of Justice lawyers for them to look at. The DOJ lawyers sign off on the program because they're also part of the Bush administration.

But we all have personal responsibility, and in the end, NSA would have to implement this, and every operational decision the agency makes is made with the full involvement of its legal office. NSA professional career lawyers -- and the agency has a bunch of them -- have a well-deserved reputation. They're good, they know the law, and they don't let the agency take many close pitches.

And so even though I knew the program had been reviewed by the White House and by DOJ, by the Department of Justice, I asked the three most senior and experienced lawyers in NSA: Our enemy in the global war on terrorism doesn't divide the United States from the rest of the world, the global telecommunications system doesn't make that distinction either, our laws do and should; how did these activities square with these facts?

They reported back to me. They supported the lawfulness of this program. Supported, not acquiesced. This was very important to me. A veteran NSA lawyer, one of the three I asked, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program have been very careful from the outset because they knew there would be a day of reckoning. The NSA lawyer replied to him that that had not been the case. NSA had been so careful, he said -- and I'm using his words now here -- NSA had been so careful because in this very focused, limited program, NSA had to ensure that it dealt with privacy interests in an appropriate manner.

3. Once the DOJ signed off on their program, the NSA implemented it.
In early October 2001, I gathered key members of the NSA workforce in our conference room and I introduced our new operational authority to them. With the historic culture of NSA being what it was and is, I had to do this personally. I told them what we were going to do and why. I also told them that we were going to carry out this program and not go one step further. NSA's legal and operational leadership then went into the details of this new task.
4. Remember, all of this has been done without the knowledge of the American people. Once the American people begin to learn of this program, they try to stop the NSA. In one case, EFF files suit against AT&T for illegally aiding the government in its collection scheme.

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications.

In December of 2005, the press revealed that the government had instituted a comprehensive and warrantless electronic surveillance program that ignored the careful safeguards set forth by Congress. This surveillance program, purportedly authorized by the President at least as early as 2001 and primarily undertaken by the NSA, intercepts and analyzes the communications of millions of ordinary Americans.

In the largest "fishing expedition" ever devised, the NSA uses powerful computers to "data-mine" the contents of these Internet and telephone communications for suspicious names, numbers, and words, and to analyze traffic data indicating who is calling and emailing whom in order to identify persons who may be "linked" to "suspicious activities," suspected terrorists or other investigatory targets, whether directly or indirectly.

But the government did not act-and is not acting-alone. The government requires the collaboration of major telecommunications companies to implement its unprecedented and illegal domestic spying program.

5. The government, being all-powerful, decided from on high that we mere mortals were not allowed to pass judgement on their actions. To make their point perfectly clear, government officials have threatened to "assert the military and state secrets privilege." Doing so would effectively remove the case from public scrutiny and shield the government from any wrongdoing.

DOJ Will Assert Military and State Secrets Privilege and Request Dismissal of Lawsuit

San Francisco - The United States government filed a "Statement of Interest" Friday in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T, announcing that the government would "assert the military and state secrets privilege" and "intervene to seek dismissal" of the case.

EFF's lawsuit accuses AT&T of collaborating with the National Security Agency in its massive surveillance program. EFF's evidence regarding AT&T's dragnet surveillance of its networks, currently filed under seal, includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005

Much of the evidence in the case is currently under seal, as AT&T claims public release of the documents would expose trade secrets. A hearing on the issue is scheduled for May 17th.

So, there you have it: a roadmap to tyranny. All you have to do is get some hack lawyers at DOJ to sign off on your program. When the American public becomes suspicious of your actions, throw the cloak of secrecy over it. Accountability? Are you kidding?!? We're an empire now, Baby!

Oh, and one last thing... In case you missed Hayden's comment about the hijackers and how the law applied to them before the 9/11 event, here it is:

"So, for example, because they were in the United States -- and we did not know anything more -- Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11."

What Hayden is saying is that the hijackers would have had a right to privacy just like everyone else in the United States. Obviously this wasn't going to work for them if they were going to catch terrorists with their new surveillance schemes. So, instead of working within the law as it is written, they decided to have their lawyers reinterpret the law in such a way that it lowered the standard of privacy and allowed for ever-increasing intrusions by government. Instead of fixing the perceived defects in the law, they stripped all Americans of their rights. It's just much easier that way.


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