February 05, 2006

George Bush's (Probably Illegal) Wiretaps Are Largely Useless

The latest:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no ...

That's George Bush for you ladies and gentlemen - he'll lie to you, lie right to your face.

The article also notes what this might mean for the constitutionality of this entire enterprise.

The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable.
Posted by armand at February 5, 2006 02:50 PM | TrackBack | Posted to The Ever Shrinking Constitution


Comments

And at least one Republican is publicly declaring the practice unconstitutional, and an important one at that. I stand by my previous claim that this may ultimately turn out to be ruinous for the administration, the straw that breaks the camel's back in the Senate and in public opinion.

Posted by: moon at February 5, 2006 03:22 PM | PERMALINK

Bro,
This doesn't make much sense. Okay, the article talks about computer programs that filter the data and spit out what they believe will be the most probable leads, which investigators run down. Now, after the investigators have run down the leads, then it turns out that most of the calls were not actually with terrorists in the United States. Do you see the problem with their argument? Their saying there's not enough probable cause because a small number of the leads pan out. But probable cause doesn't have anything to do with whether they pan out or not, it has to do with whether there was probable cause from the lead itself.

And they offer no comparison group of data, for instance the number of calls that turn into leads that pan out in drug operations or organized crime operations. So there's no way to tell whether 10 out of a few thousand is par for the course as far as what to expect from telephone surveillance, whether it's low, or whether it's high. And without comparison data, there's no way we can just assume that the process is faulty because it only leads to a certain number of real suspects (which the article suggests may be up to ten a year in the US, so that could be enough for a 9/11 every two years that wouldn't be otherwise caught) out of a certain number of leads. Get it?

Posted by: Morris at February 5, 2006 06:30 PM | PERMALINK

Morris,

This issue isn't whether the leads pan out (or not), but whether the practice is legal or not. Of course "data mining" will generate a great many false-positives (people flagged as being terrorists, who aren't really terrorists); the larger (and more important) question is whether their civil/constitutional rights are being violated (without them knowing it), and whether the number of false positives generates so swamps the system with things to investigate that the data mining becomes useless (because you don't have enough investigatory bodies to run down all the potential terrorists).

Posted by: baltar at February 6, 2006 09:53 PM | PERMALINK

You're not totally on the mark, though Baltar. I think that pointing out that it doesn't work removes a big part of the administration's justification. The whole, well, they say we're doin' somethin' illegal but it's just that we're gunna bend the rules a little bit to get the bad guys. People bite on that shit like a snook on a silver spoon. If it helps get Osama, people are going to look the other way. But if it doesn't and cvil liberties are violated for nothing, well, maybe people won't respond so well to the bait and switch.

Posted by: binky at February 6, 2006 10:01 PM | PERMALINK

Can't we argue about this in two tracks? There is the "its illegal" argument (which Morris and I have already gone round and round about), and (separately) the "it doesn't work" argument. Both, by the way, seem to be true.

Posted by: baltar at February 6, 2006 10:11 PM | PERMALINK

I'm saying that they should be taken together, because it makes a better care. All the "time of war" talk and rejection of "pre-9/11" frame of mind nonsense implies that we are in desperate times that require desperate measures to get the job done. I say it's a two part answer that a) we don't require desperate measures and b) they don't get the job done anyway. So in the end, all we get is infringement on our rights for no gorram reason.

Yes, I used that word on purpose.

Look, it's like the torture argument that people make: yes yes it's morally wrong, but what if there was a hidden nuke about to go off?! And the answer is: you stil shouldn't torture because the information is crap and won't lead you to the nuke. Same thing here, to a much lesser degree. Nobody is getting tortured, but rights are being violated for no outcome.

What's the point?

Posted by: binky at February 6, 2006 10:21 PM | PERMALINK

I'm just waiting until somebody (maybe in a future administration, maybe not) decides that drug users or left-activists or "militias" or the like are such a "threat to national security" that they can *cough* expand the program.

Of course, it's not inconceivable that they already have.

Posted by: jacflash at February 7, 2006 09:08 AM | PERMALINK

They already targeted vegans and teh gays. For Patriot Act surveillance, that is.

Posted by: binky at February 7, 2006 09:18 AM | PERMALINK

Morris, you write: "But probable cause doesn't have anything to do with whether they pan out or not, it has to do with whether there was probable cause from the lead itself."

What does probable cause have to do with anything when the government is maintaining that it need not pursue a warrant. "No warrant shall issue" is so much filler if the government thinks we're entirely outside the Fourth Amendment, which it pretty clearly does.

As for the underlying question here, if the Administration were to straighten up and involve the judiciary in its searches by, say, using the FISA court as it is supposed to, the relative efficacy of the method to be employed absolutely would bear on the probable cause inquiry. The relative intrusion must be measured opposite the benefit and justification in a given situation on a sliding scale, and where the intrusion far exceeds the benefits courts will find no probable cause. This is a product of the governing "totality of the circumstances" inquiry. The sort of surveillance we appear to be talking about constitutes an unprecedented intrusion, and notwithstanding your fuzzy math -- 10 + 10 terrorists = 20 terrorists = one 9/11 forestalled every two years = HUH? -- the administration has produced very little to justify the sweeping intrusion, brandishing only a couple of anecdotes, one of them the discredited Brooklyn Bridge plot (yes, there was a plot; no, it had no chance of succeeding; no, unconstitutional surveillance was not needed to identify the plot and intercede).

Posted by: moon at February 7, 2006 10:31 AM | PERMALINK

Moon,
You're right, the administration has "produced very little to justify the sweeping intrusion, brandishing only a couple of anecdotes," because this stuff is supposed to be secret, at least, or top secret, and yet how is it that the WaPo keeps getting all these secret or top secret (anecdotal) reports about the supposedly top secret program? The Bush administration is doing their job, keeping this as secret as possible given all the information that has already leaked out about it. The people who aren't doing their job are the ones who keep leaking this information. I'm not saying they have to obey unconstitutional orders, but they're obviously educated people if they're involved in this program, so they can talk to a lawyer to find out the proper legal channels within which to resolve their complaint. They can ask a lawyer to sue the government in court if they think this is unconstitutional, to bring this matter up to someone who has the right to decide that the confidentiality and wiretapping is or is not justified, to decide if this program is or is not constitutional. If there are not judicial channels of recourse (which I find hard to believe, because this wiretapping is going on in somebody's backyard, and the district attorney of that area could bring charges if criminal behavior is found), then they can bring it up to the Senate Intelligence Committee, to someone with a clearance for secret information who could act responsibly with the proper government channels, if their concern is a legal one. But to instead talk to someone at the WaPo is not the behavior of someone with a constitutional axe to grind, it's the behavior of someone with a personal or political axe to grind. I'm sure there are a lot of people in secret or top secret programs in our nation's history who may have at one time or another thought they were being asked to do something unconstitutional. But if every time this happens, they went to a newspaper and leaked information, why bother to even have secret programs? Of course, the reason is that our information could be used to harm us by the terrorists, and we are less able to defeat them if they know everything we know. Loose lips sink ships.

Posted by: Morris at February 7, 2006 05:36 PM | PERMALINK
They can ask a lawyer to sue the government in court if they think this is unconstitutional, to bring this matter up to someone who has the right to decide that the confidentiality and wiretapping is or is not justified, to decide if this program is or is not constitutional. If there are not judicial channels of recourse (which I find hard to believe, because this wiretapping is going on in somebody's backyard, and the district attorney of that area could bring charges if criminal behavior is found), then they can bring it up to the Senate Intelligence Committee, to someone with a clearance for secret information who could act responsibly with the proper government channels, if their concern is a legal one.

This comment reflects a blithe ignorance of the law concerning searches and seizures. The only person who can challenge a search or seizure in a court of law is the person aggrieved -- that is, the person directly against whom the challenged action has occurred. Typically, people only even learn of their aggrievement if prosecution is initiated, which is kind of tough if there one of millions whose constitutionally protected private communications are caught up in an ineffectual dragnet, since needless to say most if not all of these will not be prosecuted. A government employee who is not directly aggrieved has no recourse, and neither does a local DA absent the searchee's discovery of the intrusion and choice to pursue legal redress. Anything else would entail the sort of advisory opinion conservatives purport to deplore (except, of course, when they favor conservative causes). By your argument, as long as the snooping is quiet, everyone should just suck it up. This is not, however, what the Bill of Rights says.

There is a long vibrant tradition of whistle-blowing, and if operational security is so important, why isn't Bush himself violating federal law when he touts his successes on one hand while claiming that other operations, failures or otherwise, are protected.

Oh, and as for loose lips, where was this opinion of yours when we were discussing the vile plot to armtwist a whistleblower by, well, blowing the whistle on his wife's occupation as a covert operative? Just checking.

Posted by: moon at February 7, 2006 08:04 PM | PERMALINK

Moon,
It's amazing to me how when Bob Woodward says something bad (and true) about a Republican President, it becomes a media firestorm, but when he says that the Plame leak didn't come from a Republican President, no one listens to him.
And the numbers defeat your arguments. You talk about how Bush violates operational security by touting his two successes. So your first argument is that two successes isn't enough to justify a wiretap, and your second is that two successes is breaching national security. So, your concern for the "totality of the circumstances" evaporates when a conclusion can be drawn that Bush is a bad guy? Look at the numbers. The article says that up to ten leads have been worth following each year since this program began. Yet by your words, Bush has only touted two successes. Why do you think that is? Are you telling me that Karl Rove who you guys think is such a genius that he can get someone you guys think is a corrupt idiot elected by the American nation, twice, Karl Rove hasn't bothered to mention that it might bolster his hand to talk about other successes? Of course he has, of course it would be in Bush's interests to talk about all the leads worth following, of course ten terrorists plus ten terrorists makes enough for another 9/11 (how that's fuzzy confuses me), but ten terrorists wiretaps plus ten terrorists wiretaps could be enough to prevent 20 terrorist attacks, because one terrorist conversation could be enough in itself to stop an attack. And if we've learned everything we can about an attack, why not let the American people know that they have some heroes in their midst. Oh, that's right, whenever Bush congratulates the troops he's only doing it to satisfy his own venal ambitions, and it's only a half truth because he's a lying liar, and if he's not telling us about other terrorist leads, even if they're confirmed by the ones who leaked this program to begin with, they don't exist, or maybe they were conversations between terrorists and Rove, or between Dick Cheney and Osama. Do you listen to yourself? This is liberal madness, everything's true if it makes Bush the bad guy.

And your missing a great point about the law with which I am familiar, that people who get wiretapped but then nothing happens can't sue because there are no damages, and as I've said before this program shouldn't be used to throw people in jail if they confess to shoplifting, it should be used for terrorists, and that's how it is used.

Posted by: Morris at February 8, 2006 11:08 AM | PERMALINK

your account of the law, with which you profess familiarity (which is scissors to the rock of my education and my extensive work with the real stuff), would allow police to break down your door, rifle through your papers, and leave, everything tossed on the floor and the door off the hinges, so long as they didn't prosecute based upon what they found.

hi, china? i think you lost a citizen. you can have him back, thank you very much.

morris, it's true that the lack of touting of successes could arise out of security interests. it's also true that it could arise out of the realization that the successes are anything but. given this administration's history of mendacity, and the fact that one of its proferred stories is so plainly no defense of unconstitutional tactics since those tactics didn't contribute to the outcome in any event, they don't get my benefit of the doubt. they obviously get yours, as well as that of quite a few others, but then quite a few others think bennifer and brangelina are interesting stories. Elitist? You can bet your ass on it, and I'm unapologetic.

I've got thousands of years of history speaking in favor of due and independent restraints on power. You've got two stories in defense of its converse, one of which entails, literally selling you a bridge.

Sorry, I'm not buying it. That's not what my Bill of Rights, as elaborated upon by liberal and conservative Supreme Court panels alike, says. When Bush convinces me that he can read the Bill of Rights without stammering over half of it, I'll listen, and no sooner.

If Woodward had been contradicted in the 1970's by just about every credible journalist with access I might not have believed him then either. And if Woodward hadn't been the only journalist granted any access to a White House with patent and demonstrable hostility to just about anyone with a press credential, I wouldn't suspect that the quid pro quo such access required hopelessly compromised his integrity. By the way, some of the reporters contradicting Woodward are the reporters at the heart of the story. Are they all lying, Morris?

Posted by: moon at February 8, 2006 01:30 PM | PERMALINK

That's a good question, which appears to be the sum of six paragraphs of ad hominem attacks rather than actual responses to what I'd said. Are they all lying? That's a good question. So rather than actually respond with evidence, you just would throw away Woodward's account because he hates the press, which I suppose is why he writes for the Washington Post? Or maybe what you mean is he hates certain behaviors characteristic of the press, but you don't want to say that because it would blow your argument, and you'd have to think of another reason to hate Bush today. Or maybe he just thinks they're below him, somehow he's an elitist and it means he's wrong, while when you proclaim elitism it means your right?

And thankyou, Mr. Hyperbole, for once again putting words in my mouth, once again making up a straw man to argue with, one who supports a country where doors are broken down, rather than actually arguing with my position that these types of things are okay only when the government believes terrorists are operating inside, in which case, yes, I do want the door broken down, like they might break down the next Atta's door, rather than the next Atta breaking down another pilot's door.

Posted by: Morris at February 8, 2006 04:32 PM | PERMALINK

And remind me again how the government is supposed to know who is and who is not a terrorist? Think they might be wrong? I do - lots of intel is bad intel, so you might want protections built into the system to make sure the government isn't breaking down doors, seizing personal items (and hey, why stop there, let's terrorize children, rape people and torture 'em too if it's open season on SUSPECTED terrorists or SUSPECTED aquaintances) and such of lots of perfectly innocent people who shouldn't be subject to that kind of thing from their government.

What's so galling here (well there are lots of things about this that are galling, but one is ...) is that the president insists that he can by personal fiat dismss/destroy those protections that we have been promised by the government. He's asserting authority that can be both arbitrary and limitless - and that should make Americans both scared and extremely angry. Our freedoms have come at a heavy price but they are being tossed aside by this a single child of privilege and his cronies. And Congress is doing little to stop this abuse of power and trust.

Posted by: Armand at February 8, 2006 04:47 PM | PERMALINK

Bro,
If children start being terrorized and people start getting raped or tortured, let's focus on that problem then. But to say that just because calls to foreign countries are wiretapped and if they're found to be plotting terrorism, we can stop those attacks against our children, to say that necessarily leads to 1984 is logically absurd. There's a big straw man here, and your argument only works if you take the straw man out of here and it holds up. If liberties are as absolute and vulnerable as you suggest, we shouldn't make any laws at all.

Posted by: Morris at February 8, 2006 05:11 PM | PERMALINK

Uh, I think it's absured to think for an instant that a government agency won't use 150% of the powers you give it. Or on this case - the powers nobody's given it, but that the president has ordered it to engage in nonetheless.

And abusing/incarcerating children is a tactic that we have already used re: our "intelligence gathering activities" in Gitmo, Abu Ghraib and Afghanistan. True, to my knowledge none of those kids we terrorized were US citizens, but I think it makes it abundantly clear that there are people in the government who would have no qualms whatsoever in engaging in that type of activity if the tiniest bit of room allowed them to do so and they thought they might gain something out of it.

So I don't think my proposition is a "straw man" at all.

Posted by: Armand at February 8, 2006 05:18 PM | PERMALINK

Bro,
We incarcerate children in our own country, if you've forgotten, when they hurt other people, so of course we'd do the same with other nation's children who intended to hurt our people. That's not torture. And I'm glad to hear you admit that no one in the government thinks they have the tiniest bit of room to engage in the types of activities about which you're concerned, because according to your argument if they had that room they'd take it. And if they haven't taken it, according to your logic, they don't have it.

Posted by: Morris at February 8, 2006 05:47 PM | PERMALINK

i believe the law thread of this discussion started with gonzo's refusal to say, one way or another, whether the "inherent" constitutional authority to wiretap in violation of express law and outside constitutional judicial review also implied authority to open international mail or invade the homes of people who've embarked upon, say, a stray phone call with a friend of a friend of a friend of some suspected terrorist in uzbekistan. if he'd said, "no, there are limits," this discussion would be very different. he didn't say that. no one in this administration has ever said that. and so at present i have no reason not to conclude that gonzo, and a fortiori the administration that presumably has him on the same tight leash it has its nasa scientists on, spoke for the administration when he refused to acknowledge any limit whatsoever on the authority, in a perpetual state of war, to search and seize whatever and whomever it wants without observing the most basic protections enshrined in our constitution and reinforced by FISA. this is not a straw man. the entering your house rifling through your things scenario begs to be identified here, and you, not i, have repeatedly said that in the absence of prosecution for non-terrorist-related info these intrusions ipso facto are fine. i disagree. i'm not trashing a strawman, though. i'm using gonzo's and bush's consistent line to express my fears, and explaining why those fears go to the very heart of the freedoms i'm supposed to believe a) the terrorists hate me for and b) this nebulous, interminible state of war is aimed at defending. no straw man. and i'm not convinced. capisci?

as for your utter failure to understand what i said about woodward was not that he hates the press. for goodness sake, that would be silly. what i meant was, bush has such blatant and enduring contempt for the press, surpassed only by similar feelings made clear by rumsfeld, cheney, and turd blossom (as manifest through poor mclellan's pathetic evasions), that i have trouble concluding that after mocking, pissing on, insulting, and ignoring the critical function of basically the entire mainstream media, bush brought on woodward because he wanted someone to incisively tell the truth about how things go on at the white house. why start years after he made clear that all of that was none of anyone's business. woodward has, for most of his post-watergate career, carefully skirted the borderland between access and sycophancy, and based on the lack of support for his account from any of the players close to it (except those who stand to lose something), i find it difficult not to discredit his version. he didn't endure jailtime, or square his information with that found by the independent (republican, mind you) investigator, or anything else. he went on larry king and cried a summary "bullshit," without any indication where people or wrong or on what basis he can make that claim. that's sloppy, and trading on celebrity, not rigorous journalism as has been endeavored by many others on the plame matter, all of whom have reached a general consensus that in no way is reflected by woodward. woodward doesn't hate the press, i'm sure. but under these circumstances, i don't think he was functioning as a member of it, either. he was propaganda, wittingly or un-, and most journalists and commentators seem to have recognized as much. you might get wise, yourself, or explain to me why i should trust him and no one else on the plame matter.

finally, returning to "the law," you describe your "position" as follows: that these types of things are okay only when the government believes terrorists are operating inside, in which case, yes, I do want the door broken down, like they might break down the next Atta's door, rather than the next Atta breaking down another pilot's door.

without a warrant, morris? the chinese gestapo surely can offer suspicions for why they break down doors too, as can countless generations of police officers and federal officers. indeed, the same could be said of the english, which is a big part of why we adopted stringent protections against that sort of thing in our founding document. the whole point of checks and balances as that we take those with power at their word only to the extent absolutely necessary.

furthermore, where an officer can demonstrate exigent circumstances -- which would include the likelihood of a party disappearing into the ether, or an imminent attack, or destruction of evidence -- he may often enter a house by force and without a warrant. but that exigency must be evaluated after the fact by a member of the judiciary. if bush would concede as much, i'd be fine. but he won't, and that worries me. it should worry you as well.

Posted by: moon at February 8, 2006 06:45 PM | PERMALINK

Just to prod you a bit, Morris, above, you wrote: "The Bush administration is doing their job, keeping this as secret as possible given all the information that has already leaked out about it. The people who aren't doing their job are the ones who keep leaking this information."

A propos Bush and secrets, CNN reports:

WASHINGTON (CNN) -- Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, told a grand jury he was "authorized by his superiors" to disclose classified information from an intelligence report to reporters, according to the special prosecutor in the CIA leak case.

In a letter to Libby's lawyers, obtained by CNN, special prosecutor Patrick Fitzgerald said it is his understanding that Libby testified he was "authorized to disclose information about the National Intelligence Estimate to the press by his superiors."

The letter does not name who the superiors are. But the National Journal, which first reported on the Fitzgerald letter, named Vice President Dick Cheney and other White House officials as authorizing Libby to disclose the classified material.


So, you were saying? Posted by: Moon at February 10, 2006 09:57 AM | PERMALINK

Oh and this is just rich. The Times runs Porter Goss's op-ed, which endeavors to distinguish whistleblowing from good old lawlessness. How perfect that this runs the same day as the Times et alia break the Libby story suggesting that the very sort of lawlessness at issue is a commonplace in the west wing.

Coming from an administration toady, this is the very pinnacle of chutzpah (from the up is down school of spin we're all too familiar with these days):

[T]hose who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.
I agree. I think we had better arrest Dick Cheney. And I've got a hunch he'll turn on Turd Blossom, too. Posted by: moon at February 10, 2006 10:43 AM | PERMALINK
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