China’s Cyber Militia
Friday, May 30, 2008
Chinese hackers may be responsible for two U.S. blackouts and the theft of information from a Cabinet secretary.
Read the full story at National Journal.
Full Article
Friday, May 30, 2008
Chinese hackers may be responsible for two U.S. blackouts and the theft of information from a Cabinet secretary.
Read the full story at National Journal.
Full Article
Surveillance Standoff
Friday, April 04, 2008
In the old days, everyone was linked to a lug nut, and Jim Kallstrom liked it that way.
It was 1985, a simpler time for a cop like Kallstrom, who was in charge of setting telephone wiretaps on suspected drug dealers and mobsters for the FBI's New York City field office. In New York, Kallstrom's cases were often won on the basis of incriminating evidence surreptitiously snatched from the mouths of criminal defendants through their phone lines. With a mere 203,000 Americans using mobile phones, people were still tied to the ground, and that gave Kallstrom's world a certain comforting order.
On any given day, he could stand on a street corner in Manhattan, gaze up at an apartment building with its neat rows and columns of units stacked atop each other, and know that inside each one there was a telephone, tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye, Kallstrom could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There, the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop each other -- the city of New York in analog miniature.
With a warrant in hand, Kallstrom could tell the technicians at the phone office, with whom he had become friendly over the years, "Go up on RR326." The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, Kallstrom became an invisible interloper.
FBI agents and federal prosecutors depended on these legal wiretaps to penetrate drug cartels, incriminate money launderers, and spy on mob families. And they needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Lest the agents violate a judge's order, and perhaps land themselves in jail, this had to be the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that certain apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of Kallstrom's target. It was, by design and necessity, a neat, specific system.
And then it all went sideways.
Kallstrom's friends in the phone company put him on notice in 1985: Over the next few years, those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1's and 0's. Thousands of lines commingled in a single computer. When New York went digital, the phone techs told Kallstrom, they would no longer be able to tap him directly into RR326. In fact, they couldn't even tell him for sure where RR326 resided in this new engineering matrix.
At the same time that the phone companies were preparing for the transition to digital, the use of cellphones -- which were inherently harder to tap because they used phone lines differently than analog devices -- mushroomed. From 1985 to '86, the number of registered mobile-phone subscribers in the United States doubled to 500,000. Within two years after that, the number climbed to 1.6 million. By the end of the decade, the cellphone universe had skyrocketed past 4 million.
Organized crime was an early adopter of the mobile phone. In a communications technique presaging that of Islamic terrorists today, members of the Colombian Cali drug cartel operating in New York would briefly use a phone, toss it, and get a new one. To tap a mobile device, technicians had to install listening equipment on the new version of a lug nut -- an "electronic port." But in most switching stations in New York, there were only half a dozen or so ports available at any one time. Federal prosecutors and agents had to stand in line at phone company offices and fight with each other over whose investigation should take priority. Some prosecutors threatened to haul company employees into court on contempt charges so they could explain to a judge why the phone company was unwilling to execute a wiretap order.
Electronic surveillance, once such a dependable, relatively easy craft, was becoming inordinately difficult, Kallstrom thought. The phone companies, whose annual revenues from mobile subscriptions were cresting over $2 billion in the late 1980s, showed little willingness to make the FBI's life easier. As the 1990s approached, with the promise of more digitization and more mobility, Kallstrom called his bosses in Washington: "If we don't do something, we'll be out of the wiretapping business."
A Battle Begins
Kallstrom may have been the first to alert the FBI and the Justice Department to this new reality. The digital revolution generated a constant tension that exists to this day, a push and pull between the federal government in one camp and technology corporations and civil-liberties activists in the other to control the development of the global communications system, and so the balance of power in the Information Age.
This struggle's latest manifestation is the intensely politicized effort to rewrite the Foreign Intelligence Surveillance Act. At issue is nothing less than the government's authority to broadly monitor communications networks to spot terrorists and other national security threats. The Bush administration finds itself across the battle lines from many of the same groups that more than a decade ago argued that the government was already extending its reach too far into personal conversations in the name of pursuing criminals.
While FISA governs wiretapping for intelligence-gathering purposes, as distinct from law enforcement, surveillance in both worlds follows the same essential philosophy -- the best evidence in a court of law or in an intelligence operation is one's own words. Today's dispute is not very different from the one that occurred during the dawn of digitization in the 1990s. Indeed, both are part and parcel of the same long-running debate.
No one should believe that real-time government surveillance of the communications network is an idea born of the 9/11 attacks or that it results solely from the Bush administration's aggrandizing of executive power. The legal arguments that the government has asserted to support increased surveillance of digital space were first put forth in 1994, under a Democratic president, and they had little to do with the threat of Islamic extremism.
Nor should anyone mistake the roots of the vociferous opposition to today's wiretapping from civil libertarians and privacy advocates. Many of these groups and their allies have been battling to restrict the government's use of new, potentially invasive technologies for a generation. The Bush White House is only their latest adversary, albeit the most formidable. These activists and their allies in the business world have been motivated by different but mutually supportive goals: to extend constitutional safeguards to the digital realm, and to keep the government from suffocating technological development with burdensome surveillance laws. Some in those ranks would have liked, and indeed tried, to make the digital network a wiretap-free zone.
But despite the occasionally extreme positions and deeply held convictions of all of these players, the most important laws governing wiretapping, electronic surveillance, and privacy have been the product of negotiation, of people gathering in a room, sitting at a table, and talking -- sometimes screaming -- until they reached a settlement. The current debate, however, is missing that crucial spirit. Whereas before, adversaries trusted each other enough at a basic level to make deals, however temporary, today's opposing sides seem unwilling to compromise to pass new surveillance laws that the nation can live with. It's not entirely clear where or why minds turned so stubborn. But to understand today's political calcification, it helps to recall a simpler time.
The Art Of Compromise
Jerry Berman was a veteran of the privacy wars, seemingly born for the role of liberal, dogmatic activist. In the early 1950s, his father, a labor leader, was investigated by the House Un-American Activities Committee. A native of Hawaii, the younger Berman moved with his family to California, where he enrolled at the University of California (Berkeley). After earning his bachelor's and master's, and, in 1967, his law degree, Berman began lobbying for the American Civil Liberties Union. He became an authority on the intersection of national security and technology, schooled by the exposure of illegal FBI spying operations aimed at political organizations, war protesters, and leftist activists. In 1978, Berman helped to craft the Foreign Intelligence Surveillance Act, which set new restrictions on the government's domestic intelligence-gathering. He was present at the creation of several important pieces of surveillance legislation, and he helped secure individual privacy protections.
In playing his role, Berman didn't adhere to a hard-and-fast position but instead embraced his own brand of "principled pragmatism." By his logic, the interests of privacy and national security were not incompatible. If all sides -- government, industry, civil-liberties activists -- could find ways to "maximize the good and minimize the harm," as he liked to say, they could strike a satisfactory balance and create workable laws. This idea guided his work on FISA and other legislation, sometimes to the consternation of more-ideological activists who employed him to lobby Congress on their behalf.
Perhaps that was because principled pragmatism recognized an unsavory reality: In Washington, those who show up to play the game make the rules. Negotiation requires sacrifice. Sacrifice requires flexibility. Some people would rather break than bend. But compromise is how things get done, and Berman accepted it. As a colleague summarized Berman's general approach to lawmaking, "You can stand on your principle and get your ass handed to you, or you can engage in the process and get a better deal."
In the summer of 1994, the FBI and the Justice Department made a bold play to force the telecom carriers to help them conduct legal wiretaps. They put forth a proposal that would require the companies to build their networks so that law enforcement agents serving a warrant could access them in real time. The legality of wiretapping was not in question. The government wanted legal assurance that it could tap, at any time, and that the industry had an obligation under law to comply with the government's proper authority.
No more computer-related hassles, no more standing in line to plug into mobile-phone ports. Law enforcement agents, federal spymasters, and prosecutors wanted a comprehensive remedy to what they called the "digital telephony" problem. Their chief advocates were Kallstrom and Louis Freeh, the recently appointed FBI director, a former special agent and federal prosecutor who had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. Freeh personally pushed for the new law, showing up unannounced in reluctant lawmakers' offices to press them for support and even sitting in on committee markups -- an unprecedented move for an FBI director -- to stare members down.
Clipper Chip
The 1994 proposal was only the latest in a series of government efforts to strengthen its control of the telecommunications network. In the late 1980s, Justice officials had gotten as far as placing language in an anti-crime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making that federal official the network's architect-in-chief. (The bill did not pass.)
In 1993, Bill Clinton, in one of his first presidential directives, announced that engineers at the National Security Agency, the intelligence community's electronic surveillance arm, had developed a cutting-edge microcircuit, called the "Clipper" chip, to scramble telephone conversations. The administration intended to promote the installation of the Clipper technology in U.S. telephones, and planned to hold "in escrow" the digital keys to decrypt any conversation. In other words, the federal government would build the lock and keep the key, an idea that inspired a reaction somewhere between outrage and apoplexy among technologists and privacy advocates, who ultimately killed the idea.
In that atmosphere of hostility and skepticism, Berman went to work. Beginning in August 1994, he convened a series of meetings with senior law enforcement officials under the auspices of a privacy and security coalition he had formed with more than four dozen activist groups and technology companies -- including the biggest telecom provider of all, AT&T -- plus the U.S. Telephone Association, IBM, and software makers such as Microsoft. The goal was to resolve differences over the government's proposal to ensure federal access to telecommunications networks. Berman also brought in two powerful Democratic lawmakers and noted civil libertarians, Sen. Patrick Leahy of Vermont and then-Rep. Don Edwards, whose district included California's Silicon Valley. Everyone in the negotiating room had some familiarity with technology issues, and professional experience in law enforcement or Justice Department oversight.
The meetings featured intense, nitty-gritty debates over the technical aspects of the law. The FBI wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was in fact after a permanent covert backdoor into the phone system. The negotiations helped to somewhat dampen the suspicions, however, and the talks went forward because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.
But outside of the meetings, divisions festered among the interest groups. Berman represented the Electronic Frontier Foundation, which champions the public interest in the digital realm, but its board couldn't decide whether compromise was prudent or perilous. Berman felt he had to persuade his colleagues, in another series of heated meetings, to work in the middle. To him, that meant that the legislative negotiations would follow an inviolate principle: We will only craft solutions to known problems. No writing of laws aimed at encompassing future problems. If the FBI has difficultly accessing the public telephone network, then the law will address only that public telephone network.
In addition to identifying a philosophical guideline, this approach served a more strategic goal -- to keep the FBI's hands off the Internet, which was so new in 1994 as to be practically notional. Internet service providers such as America Online and Prodigy had only a handful of subscribers, and the first Web browser had been released that year, in a beta test version. Still, Berman and others knew that the FBI would never willingly agree to stay off the information superhighway, because Internet-based information held tremendous potential value for law enforcement.
During one meeting, David Johnson, a lawyer who had helped to craft the Electronic Communications Privacy Act in 1986, held up a glass jar full of rocks and asked, "How many of you would say this jar is full?" Most people agreed that it was. Johnson took a fistful of pebbles and dropped them into the jar. They tinkled down through the rocks, finding resting places in the empty spaces. Then he poured sand into the jar. As it cascaded into the empty spaces, Johnson told the onlookers that the sand was like the unseen, seemingly insignificant "transactional data" that traveled on the Internet. Transactional data includes the routing information for a text-based message -- where it comes from, where it goes, and what path it follows -- and the series of digits that make up an Internet address. This information would someday be of enormous value to the government, he said, just as phone call records, as opposed to actual conversations, already were. The transactional data were small but meaningful -- like the tiny grains of sand that kept filling the volume of the jar.
CALEA
Johnson's vivid illustration convinced many of the participants that the new law mustn't extend too far. Again, the issue wasn't whether law enforcement had a right to information but how much power the government should have over the means to get it. Leahy and Edwards, who formally introduced the legislation shortly thereafter, declared that it would apply solely to the public telephone network. The law specifically exempted "information services," which the parties agreed included Internet companies and electronic-messaging technologies.
The Communications Assistance for Law Enforcement Act passed in the closing days of the 103rd Congress, two weeks before Republicans won control of both chambers in November 1994. CALEA (pronounced kuhLEEuh) would let the industry set its own standards to meet the Justice Department's needs. The department could list its surveillance requirements, but the act let companies decide how to build their equipment. Justice won the right to petition the Federal Communications Commission if its officials felt that the companies weren't fulfilling their obligations. But civil-liberties groups also secured the right to challenge the government's requirements in court.
It was a true compromise, hard won but workable. For Berman, principled pragmatism had carried the day. For others, however, the compromise had given away too much.
The board of the Electronic Frontier Foundation had seen the proverbial legislative sausage being made and found it distasteful. Even though the directors had agreed to every aspect of the law, which Berman explained to them, within weeks after its passage he left the EFF and formed his own outfit, the Center for Democracy and Technology, to continue his brand of lobbying. The EFF pulled up stakes in Washington the following year and moved to San Francisco, where it continues to play a leading role in supporting lawsuits against telecommunications companies -- most notably AT&T, its former ally -- for their role in assisting the government with warrantless wiretapping after the 9/11 attacks.
At the time, Berman confided to Kallstrom, whom he thought had always acted in good faith for the FBI, "My work on CALEA got me fired."
Kallstrom was apparently happy to see his more idealistic opponents leave town. "You didn't get fired, Jerry," he replied. "You got promoted."
Making Demands
Had the FBI and the Justice Department stopped there, had the government settled for secure access to phone networks, the history of Internet privacy and civil liberties might have turned out differently. But just weeks after President Clinton signed CALEA in January 1995, conflict erupted between the government and the phone carriers over the kind of network access the law provided. The raft of compromise that had carried the deal sprung a leak.
FBI officials knew in 1994 that they were making a mistake by leaving cyberspace out of CALEA. They understood the Internet's potential as a communications device and an intelligence tool -- that is, after all, why CALEA's authors exempted "information services."
"Did we know that it was idiotic to carve that out?" Kallstrom asks now. "Yes, we did." Criminals have always been among the first to embrace new technology. It was foolish to think that they wouldn't turn to the Internet for any number of nefarious gambits. But, Kallstrom says, government officials opted "to fight another day" over Internet access. Privacy advocates were dragging their feet in the negotiations. Delay would invite more debate, probably more hearings, and possibly a less favorable outcome. The political decision was made: "Let's take what we can get here."
In early 1995, the Justice Department issued its list of requirements for wiretapping, known as the punch list. Not surprisingly, many telecom executives and their attorneys viewed the demands as unreasonable. Al Gidari, a lawyer representing the wireless industry, was among the first to see the FBI's requirements, during the initial meeting to develop standards for CALEA, which was held that spring in Vancouver, British Columbia. The Justice Department's wish list, he said, amounted to "the Cadillac of wiretaps."
"Everything they could ever think of to gold plate and put on the Cadillac was in that document," Gidari recalls. Meeting its expectations represented "an exponential increase in complexity, not a linear increase.... They were very dictatorial ... technical requirements -- the very thing that Congress said it wasn't up to [the FBI] to figure out."
The standards meeting was tense and awkward, and the sides were unevenly matched. Gidari recalls a dozen or more FBI agents, in neat blue suits, all buttoned down and looking ready to roll over anyone who stood in their way. Arrayed on the opposite side of the table was a group of laid-back and casually dressed network engineers from all the major telecom equipment manufacturers and carriers that was tasked with the unenviable job of telling the bureau that the industry planned to build a much less complex system. It wasn't what the FBI agents wanted to hear.
Over the next few years, the Justice Department continued to seek increasingly sophisticated surveillance capabilities, including real-time geographical tracking of mobile phones; the ability to monitor all parties in a conference call regardless of whether they are on hold or participating; and "dialed digit extraction," a record of any numbers that a subject under surveillance punched in during a call, such as a credit card or bank account number. The government got a lot of what it wanted, but not all.
To be sure, criminals' use of new technologies helped drive the law enforcement demands. But telecom carriers worried that the cost of compliance was too high and that the FBI's technical requirements were illegally broad. CALEA, they argued, had forbidden the government from requiring specific system designs or technologies.
The FCC's Turn
Justice, frustrated by its inability to get all the demands on the punch list, finally asked the FCC to step in. In 1997, the Cellular Telecommunications Industry Association, which then represented mobile carriers, and the Center for Democracy and Technology complained to the commission that the negotiations had deadlocked because of "unreasonable demands by law enforcement for more surveillance features than either CALEA or the wiretap laws allow." The FCC, however, sided with the Justice Department on a host of requirements that privacy groups found overly broad. The tussle dragged on for two more years and ended up in the U.S. Court of Appeals for the District of Columbia Circuit, which overruled the FCC. After the commission took up matters again, it granted some of the FBI's requests, and the CALEA standards were amended.
When Justice Department officials reported to Congress on CALEA implementation in January 1998, no manufacturer of telecom equipment said that the FBI's demands were impossible to meet, but they did say that complying would be difficult and very expensive. (Although Congress had set aside $500 million to reimburse companies for retrofitting their networks, the law required the carriers to bear the cost of compliance on any equipment put in place after CALEA was enacted. Several experts believe that the final cost for compliance on telephone networks has been two to eight times the amount originally allotted.)
The level of government surveillance was so low at that time that some questioned why the FBI wanted such multifaceted access at all. In 1994, federal and state authorities were running 1,154 wiretaps nationwide, mostly for drug investigations, at an average cost of $50,000. The government was asking carriers to "design a nuclear rocket ship" for a rarely used tool, Gidari thought. "In [the FBI's] view, there was no limit to the expense the carrier should spare in order to save a life."
CALEA continued to evolve, shaped by the ongoing arguments over the terms of its birth. Activists and carriers thought that the FBI was reneging on its bargain, asking for more than the law allowed. The FBI believed that carriers were stalling when they failed to meet compliance deadlines. As all sides dug in, the meetings on implementation turned bitter. FBI and Justice officials slammed their hands on tables and screamed at carrier representatives, Gidari recalls. "You're unpatriotic! What do you want to do, help the criminals?"
The government asked those same questions after September 11, 2001. And this time, telecommunications carriers responded. Outside the normal FISA warrant process, which covers intelligence-gathering, carriers opened access to their networks, their customer call data, and their valuable transactional information -- the kind that CALEA had intended to exclude. President Bush and his administration believed that the extraordinary nature of the terrorist attacks demanded emergency actions that FISA couldn't accommodate, and the carriers answered the call from law enforcement and intelligence agencies. But government officials also seized on the post-9/11 mentality to change other surveillance laws and procedures, which they believed -- just as their predecessors did in 1994 -- were out of step with technology and reality. About three years after 9/11, officials set their sights on rewriting CALEA.
Claiming The Internet
In August 2004, in response to a petition by the Justice Department, the FBI, and the Drug Enforcement Administration, the FCC expanded CALEA to cover Internet communications, including voice calls and instant messages. The Electronic Frontier Foundation sued, along with industry, civil-liberties, and academic groups. In 2005, the Court of Appeals ruled 2-1 to defer to the FCC's reading of the law.
Many of those who had helped craft CALEA believed that the commission had misread the law and acted on a post-9/11 impulse to give the government more, not less, access to information. But to the FCC, new Internet technologies that operate a lot like telephones blurred the distinction between "information services" and the kinds of technology that CALEA was meant to cover.
After 9/11, law enforcement and intelligence agencies took a variety of measures, apart from wiretaps, to collect and mine potentially valuable information from the Internet. With the cooperation of telecom companies, government accumulated lots of transactional data -- including e-mail header information and lists of websites visited by targeted individuals -- to support counter-terrorism operations. Viewed solely as a reaction to the terrorist attacks of 2001, this kind of collection might seem extraordinary. But through the longer lens of history, the government's steady march into cyberspace is not surprising.
Law enforcement agencies have never suffered for lack of access to the phone network. Kallstrom recalls only a few instances in which agents were unable to execute a wiretap order because of new technology. But as digital, mobile technology has proliferated, the copper lug nuts that Kallstrom remembers from the 1980s have disappeared. Today, state and federal agents spend most of their tap time on mobile devices. In 1994, most wiretaps, by far, targeted private residences. There were few taps on mobile devices. Ten years later, 88 percent of the 1,710 wiretaps were on mobile devices. Only 5 percent were on residential lines. Without CALEA, some experts believe that Kallstrom's initial fears would have come true and the federal government would have been shut out of the wiretapping business.
Jerry Berman never wanted that to happen. Although he cannot accept that the law that was meant to minimize the government's influence over the Internet is now being used to facilitate it, he is willing to negotiate on CALEA again, if that is what's necessary to satisfy all parties.
That willingness to talk extends to FISA, as well, and Berman's Center for Democracy and Technology has been actively involved in the current agitations over the law. But whenever he and his cohorts have extended the hand of compromise to Congress or the administration, he says, they have been disappointed. Any attempt to revamp FISA, or to clarify CALEA, "is impossible in the current climate," Berman says. "There is no sense that you could get the kind of negotiation we got in 1994."
FISA And CALEA
One has to wonder how strong that spirit of compromise really was in 1994, and whether it was already ebbing. If the FBI was willing to take what it could get on CALEA and go on to fight another day, did the government really "settle" at all? Literally weeks after CALEA was signed the Justice Department and the FBI came roaring back with new demands. What killed the penchant for negotiation? Was it the moderates' loss of power in both political parties after the 1994 Republican revolution? Was it the entrenchment of civil-liberties activists? Was it the Bush White House's extravagant interpretation of executive power? Was it 9/11?
Berman spends a lot of time pondering these questions and thinking about next moves. He divides his time between Washington, where he chairs his group's board of directors, and a home he built on the Cacapon River near Berkeley Springs, W.Va. "We just have people in bunkers now," Berman says ruefully.
The FISA debate is currently hung up on whether companies that assisted warrantless surveillance after 9/11 should have retroactive legal immunity for any laws they may have broken. CALEA has something to say about that, too. The law requires that carriers be able to deliver call identification information to the government remotely. According to Beryl Howell, Sen. Leahy's lead CALEA staffer, that provision was meant to keep government agents from sitting in the phone companies' offices to execute their wiretaps.
It is a basic tenet of wiretapping law, whether for intelligence or law enforcement, that the communications companies act as a buffer between their customers and the government, she says, and that telecom carriers must make their own determination whether official requests are, in fact, legal. That the companies would now assert, in defense of their cooperation, that the government determined that post-9/11 requests were legal, strikes Howell as outrageous.
If ever there was a time for the bare-knuckled negotiations of the past, it's now. It's not at all clear, though, who could play the role of Jerry Berman, the one to bring people into the room to scream and yell at each other and emerge feeling better for it -- and possibly even coming to a compromise. As things stand, Congress appears more likely to punt the FISA debate to the new administration, and has shown little interest in revisiting CALEA.
The constant tension that once kept this system in balance has reached a breaking point. There is no push and pull. Maybe the stakes are too high for compromise. But until that spirit returns, Berman says, "there will be no peace."
Published in National Journal
Friday, April 04, 2008
In the old days, everyone was linked to a lug nut, and Jim Kallstrom liked it that way.
It was 1985, a simpler time for a cop like Kallstrom, who was in charge of setting telephone wiretaps on suspected drug dealers and mobsters for the FBI's New York City field office. In New York, Kallstrom's cases were often won on the basis of incriminating evidence surreptitiously snatched from the mouths of criminal defendants through their phone lines. With a mere 203,000 Americans using mobile phones, people were still tied to the ground, and that gave Kallstrom's world a certain comforting order.
On any given day, he could stand on a street corner in Manhattan, gaze up at an apartment building with its neat rows and columns of units stacked atop each other, and know that inside each one there was a telephone, tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye, Kallstrom could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There, the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop each other -- the city of New York in analog miniature.
With a warrant in hand, Kallstrom could tell the technicians at the phone office, with whom he had become friendly over the years, "Go up on RR326." The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, Kallstrom became an invisible interloper.
FBI agents and federal prosecutors depended on these legal wiretaps to penetrate drug cartels, incriminate money launderers, and spy on mob families. And they needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Lest the agents violate a judge's order, and perhaps land themselves in jail, this had to be the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that certain apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of Kallstrom's target. It was, by design and necessity, a neat, specific system.
And then it all went sideways.
Kallstrom's friends in the phone company put him on notice in 1985: Over the next few years, those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1's and 0's. Thousands of lines commingled in a single computer. When New York went digital, the phone techs told Kallstrom, they would no longer be able to tap him directly into RR326. In fact, they couldn't even tell him for sure where RR326 resided in this new engineering matrix.
At the same time that the phone companies were preparing for the transition to digital, the use of cellphones -- which were inherently harder to tap because they used phone lines differently than analog devices -- mushroomed. From 1985 to '86, the number of registered mobile-phone subscribers in the United States doubled to 500,000. Within two years after that, the number climbed to 1.6 million. By the end of the decade, the cellphone universe had skyrocketed past 4 million.
Organized crime was an early adopter of the mobile phone. In a communications technique presaging that of Islamic terrorists today, members of the Colombian Cali drug cartel operating in New York would briefly use a phone, toss it, and get a new one. To tap a mobile device, technicians had to install listening equipment on the new version of a lug nut -- an "electronic port." But in most switching stations in New York, there were only half a dozen or so ports available at any one time. Federal prosecutors and agents had to stand in line at phone company offices and fight with each other over whose investigation should take priority. Some prosecutors threatened to haul company employees into court on contempt charges so they could explain to a judge why the phone company was unwilling to execute a wiretap order.
Electronic surveillance, once such a dependable, relatively easy craft, was becoming inordinately difficult, Kallstrom thought. The phone companies, whose annual revenues from mobile subscriptions were cresting over $2 billion in the late 1980s, showed little willingness to make the FBI's life easier. As the 1990s approached, with the promise of more digitization and more mobility, Kallstrom called his bosses in Washington: "If we don't do something, we'll be out of the wiretapping business."
A Battle Begins
Kallstrom may have been the first to alert the FBI and the Justice Department to this new reality. The digital revolution generated a constant tension that exists to this day, a push and pull between the federal government in one camp and technology corporations and civil-liberties activists in the other to control the development of the global communications system, and so the balance of power in the Information Age.
This struggle's latest manifestation is the intensely politicized effort to rewrite the Foreign Intelligence Surveillance Act. At issue is nothing less than the government's authority to broadly monitor communications networks to spot terrorists and other national security threats. The Bush administration finds itself across the battle lines from many of the same groups that more than a decade ago argued that the government was already extending its reach too far into personal conversations in the name of pursuing criminals.
While FISA governs wiretapping for intelligence-gathering purposes, as distinct from law enforcement, surveillance in both worlds follows the same essential philosophy -- the best evidence in a court of law or in an intelligence operation is one's own words. Today's dispute is not very different from the one that occurred during the dawn of digitization in the 1990s. Indeed, both are part and parcel of the same long-running debate.
No one should believe that real-time government surveillance of the communications network is an idea born of the 9/11 attacks or that it results solely from the Bush administration's aggrandizing of executive power. The legal arguments that the government has asserted to support increased surveillance of digital space were first put forth in 1994, under a Democratic president, and they had little to do with the threat of Islamic extremism.
Nor should anyone mistake the roots of the vociferous opposition to today's wiretapping from civil libertarians and privacy advocates. Many of these groups and their allies have been battling to restrict the government's use of new, potentially invasive technologies for a generation. The Bush White House is only their latest adversary, albeit the most formidable. These activists and their allies in the business world have been motivated by different but mutually supportive goals: to extend constitutional safeguards to the digital realm, and to keep the government from suffocating technological development with burdensome surveillance laws. Some in those ranks would have liked, and indeed tried, to make the digital network a wiretap-free zone.
But despite the occasionally extreme positions and deeply held convictions of all of these players, the most important laws governing wiretapping, electronic surveillance, and privacy have been the product of negotiation, of people gathering in a room, sitting at a table, and talking -- sometimes screaming -- until they reached a settlement. The current debate, however, is missing that crucial spirit. Whereas before, adversaries trusted each other enough at a basic level to make deals, however temporary, today's opposing sides seem unwilling to compromise to pass new surveillance laws that the nation can live with. It's not entirely clear where or why minds turned so stubborn. But to understand today's political calcification, it helps to recall a simpler time.
The Art Of Compromise
Jerry Berman was a veteran of the privacy wars, seemingly born for the role of liberal, dogmatic activist. In the early 1950s, his father, a labor leader, was investigated by the House Un-American Activities Committee. A native of Hawaii, the younger Berman moved with his family to California, where he enrolled at the University of California (Berkeley). After earning his bachelor's and master's, and, in 1967, his law degree, Berman began lobbying for the American Civil Liberties Union. He became an authority on the intersection of national security and technology, schooled by the exposure of illegal FBI spying operations aimed at political organizations, war protesters, and leftist activists. In 1978, Berman helped to craft the Foreign Intelligence Surveillance Act, which set new restrictions on the government's domestic intelligence-gathering. He was present at the creation of several important pieces of surveillance legislation, and he helped secure individual privacy protections.
In playing his role, Berman didn't adhere to a hard-and-fast position but instead embraced his own brand of "principled pragmatism." By his logic, the interests of privacy and national security were not incompatible. If all sides -- government, industry, civil-liberties activists -- could find ways to "maximize the good and minimize the harm," as he liked to say, they could strike a satisfactory balance and create workable laws. This idea guided his work on FISA and other legislation, sometimes to the consternation of more-ideological activists who employed him to lobby Congress on their behalf.
Perhaps that was because principled pragmatism recognized an unsavory reality: In Washington, those who show up to play the game make the rules. Negotiation requires sacrifice. Sacrifice requires flexibility. Some people would rather break than bend. But compromise is how things get done, and Berman accepted it. As a colleague summarized Berman's general approach to lawmaking, "You can stand on your principle and get your ass handed to you, or you can engage in the process and get a better deal."
In the summer of 1994, the FBI and the Justice Department made a bold play to force the telecom carriers to help them conduct legal wiretaps. They put forth a proposal that would require the companies to build their networks so that law enforcement agents serving a warrant could access them in real time. The legality of wiretapping was not in question. The government wanted legal assurance that it could tap, at any time, and that the industry had an obligation under law to comply with the government's proper authority.
No more computer-related hassles, no more standing in line to plug into mobile-phone ports. Law enforcement agents, federal spymasters, and prosecutors wanted a comprehensive remedy to what they called the "digital telephony" problem. Their chief advocates were Kallstrom and Louis Freeh, the recently appointed FBI director, a former special agent and federal prosecutor who had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. Freeh personally pushed for the new law, showing up unannounced in reluctant lawmakers' offices to press them for support and even sitting in on committee markups -- an unprecedented move for an FBI director -- to stare members down.
Clipper Chip
The 1994 proposal was only the latest in a series of government efforts to strengthen its control of the telecommunications network. In the late 1980s, Justice officials had gotten as far as placing language in an anti-crime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making that federal official the network's architect-in-chief. (The bill did not pass.)
In 1993, Bill Clinton, in one of his first presidential directives, announced that engineers at the National Security Agency, the intelligence community's electronic surveillance arm, had developed a cutting-edge microcircuit, called the "Clipper" chip, to scramble telephone conversations. The administration intended to promote the installation of the Clipper technology in U.S. telephones, and planned to hold "in escrow" the digital keys to decrypt any conversation. In other words, the federal government would build the lock and keep the key, an idea that inspired a reaction somewhere between outrage and apoplexy among technologists and privacy advocates, who ultimately killed the idea.
In that atmosphere of hostility and skepticism, Berman went to work. Beginning in August 1994, he convened a series of meetings with senior law enforcement officials under the auspices of a privacy and security coalition he had formed with more than four dozen activist groups and technology companies -- including the biggest telecom provider of all, AT&T -- plus the U.S. Telephone Association, IBM, and software makers such as Microsoft. The goal was to resolve differences over the government's proposal to ensure federal access to telecommunications networks. Berman also brought in two powerful Democratic lawmakers and noted civil libertarians, Sen. Patrick Leahy of Vermont and then-Rep. Don Edwards, whose district included California's Silicon Valley. Everyone in the negotiating room had some familiarity with technology issues, and professional experience in law enforcement or Justice Department oversight.
The meetings featured intense, nitty-gritty debates over the technical aspects of the law. The FBI wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was in fact after a permanent covert backdoor into the phone system. The negotiations helped to somewhat dampen the suspicions, however, and the talks went forward because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.
But outside of the meetings, divisions festered among the interest groups. Berman represented the Electronic Frontier Foundation, which champions the public interest in the digital realm, but its board couldn't decide whether compromise was prudent or perilous. Berman felt he had to persuade his colleagues, in another series of heated meetings, to work in the middle. To him, that meant that the legislative negotiations would follow an inviolate principle: We will only craft solutions to known problems. No writing of laws aimed at encompassing future problems. If the FBI has difficultly accessing the public telephone network, then the law will address only that public telephone network.
In addition to identifying a philosophical guideline, this approach served a more strategic goal -- to keep the FBI's hands off the Internet, which was so new in 1994 as to be practically notional. Internet service providers such as America Online and Prodigy had only a handful of subscribers, and the first Web browser had been released that year, in a beta test version. Still, Berman and others knew that the FBI would never willingly agree to stay off the information superhighway, because Internet-based information held tremendous potential value for law enforcement.
During one meeting, David Johnson, a lawyer who had helped to craft the Electronic Communications Privacy Act in 1986, held up a glass jar full of rocks and asked, "How many of you would say this jar is full?" Most people agreed that it was. Johnson took a fistful of pebbles and dropped them into the jar. They tinkled down through the rocks, finding resting places in the empty spaces. Then he poured sand into the jar. As it cascaded into the empty spaces, Johnson told the onlookers that the sand was like the unseen, seemingly insignificant "transactional data" that traveled on the Internet. Transactional data includes the routing information for a text-based message -- where it comes from, where it goes, and what path it follows -- and the series of digits that make up an Internet address. This information would someday be of enormous value to the government, he said, just as phone call records, as opposed to actual conversations, already were. The transactional data were small but meaningful -- like the tiny grains of sand that kept filling the volume of the jar.
CALEA
Johnson's vivid illustration convinced many of the participants that the new law mustn't extend too far. Again, the issue wasn't whether law enforcement had a right to information but how much power the government should have over the means to get it. Leahy and Edwards, who formally introduced the legislation shortly thereafter, declared that it would apply solely to the public telephone network. The law specifically exempted "information services," which the parties agreed included Internet companies and electronic-messaging technologies.
The Communications Assistance for Law Enforcement Act passed in the closing days of the 103rd Congress, two weeks before Republicans won control of both chambers in November 1994. CALEA (pronounced kuhLEEuh) would let the industry set its own standards to meet the Justice Department's needs. The department could list its surveillance requirements, but the act let companies decide how to build their equipment. Justice won the right to petition the Federal Communications Commission if its officials felt that the companies weren't fulfilling their obligations. But civil-liberties groups also secured the right to challenge the government's requirements in court.
It was a true compromise, hard won but workable. For Berman, principled pragmatism had carried the day. For others, however, the compromise had given away too much.
The board of the Electronic Frontier Foundation had seen the proverbial legislative sausage being made and found it distasteful. Even though the directors had agreed to every aspect of the law, which Berman explained to them, within weeks after its passage he left the EFF and formed his own outfit, the Center for Democracy and Technology, to continue his brand of lobbying. The EFF pulled up stakes in Washington the following year and moved to San Francisco, where it continues to play a leading role in supporting lawsuits against telecommunications companies -- most notably AT&T, its former ally -- for their role in assisting the government with warrantless wiretapping after the 9/11 attacks.
At the time, Berman confided to Kallstrom, whom he thought had always acted in good faith for the FBI, "My work on CALEA got me fired."
Kallstrom was apparently happy to see his more idealistic opponents leave town. "You didn't get fired, Jerry," he replied. "You got promoted."
Making Demands
Had the FBI and the Justice Department stopped there, had the government settled for secure access to phone networks, the history of Internet privacy and civil liberties might have turned out differently. But just weeks after President Clinton signed CALEA in January 1995, conflict erupted between the government and the phone carriers over the kind of network access the law provided. The raft of compromise that had carried the deal sprung a leak.
FBI officials knew in 1994 that they were making a mistake by leaving cyberspace out of CALEA. They understood the Internet's potential as a communications device and an intelligence tool -- that is, after all, why CALEA's authors exempted "information services."
"Did we know that it was idiotic to carve that out?" Kallstrom asks now. "Yes, we did." Criminals have always been among the first to embrace new technology. It was foolish to think that they wouldn't turn to the Internet for any number of nefarious gambits. But, Kallstrom says, government officials opted "to fight another day" over Internet access. Privacy advocates were dragging their feet in the negotiations. Delay would invite more debate, probably more hearings, and possibly a less favorable outcome. The political decision was made: "Let's take what we can get here."
In early 1995, the Justice Department issued its list of requirements for wiretapping, known as the punch list. Not surprisingly, many telecom executives and their attorneys viewed the demands as unreasonable. Al Gidari, a lawyer representing the wireless industry, was among the first to see the FBI's requirements, during the initial meeting to develop standards for CALEA, which was held that spring in Vancouver, British Columbia. The Justice Department's wish list, he said, amounted to "the Cadillac of wiretaps."
"Everything they could ever think of to gold plate and put on the Cadillac was in that document," Gidari recalls. Meeting its expectations represented "an exponential increase in complexity, not a linear increase.... They were very dictatorial ... technical requirements -- the very thing that Congress said it wasn't up to [the FBI] to figure out."
The standards meeting was tense and awkward, and the sides were unevenly matched. Gidari recalls a dozen or more FBI agents, in neat blue suits, all buttoned down and looking ready to roll over anyone who stood in their way. Arrayed on the opposite side of the table was a group of laid-back and casually dressed network engineers from all the major telecom equipment manufacturers and carriers that was tasked with the unenviable job of telling the bureau that the industry planned to build a much less complex system. It wasn't what the FBI agents wanted to hear.
Over the next few years, the Justice Department continued to seek increasingly sophisticated surveillance capabilities, including real-time geographical tracking of mobile phones; the ability to monitor all parties in a conference call regardless of whether they are on hold or participating; and "dialed digit extraction," a record of any numbers that a subject under surveillance punched in during a call, such as a credit card or bank account number. The government got a lot of what it wanted, but not all.
To be sure, criminals' use of new technologies helped drive the law enforcement demands. But telecom carriers worried that the cost of compliance was too high and that the FBI's technical requirements were illegally broad. CALEA, they argued, had forbidden the government from requiring specific system designs or technologies.
The FCC's Turn
Justice, frustrated by its inability to get all the demands on the punch list, finally asked the FCC to step in. In 1997, the Cellular Telecommunications Industry Association, which then represented mobile carriers, and the Center for Democracy and Technology complained to the commission that the negotiations had deadlocked because of "unreasonable demands by law enforcement for more surveillance features than either CALEA or the wiretap laws allow." The FCC, however, sided with the Justice Department on a host of requirements that privacy groups found overly broad. The tussle dragged on for two more years and ended up in the U.S. Court of Appeals for the District of Columbia Circuit, which overruled the FCC. After the commission took up matters again, it granted some of the FBI's requests, and the CALEA standards were amended.
When Justice Department officials reported to Congress on CALEA implementation in January 1998, no manufacturer of telecom equipment said that the FBI's demands were impossible to meet, but they did say that complying would be difficult and very expensive. (Although Congress had set aside $500 million to reimburse companies for retrofitting their networks, the law required the carriers to bear the cost of compliance on any equipment put in place after CALEA was enacted. Several experts believe that the final cost for compliance on telephone networks has been two to eight times the amount originally allotted.)
The level of government surveillance was so low at that time that some questioned why the FBI wanted such multifaceted access at all. In 1994, federal and state authorities were running 1,154 wiretaps nationwide, mostly for drug investigations, at an average cost of $50,000. The government was asking carriers to "design a nuclear rocket ship" for a rarely used tool, Gidari thought. "In [the FBI's] view, there was no limit to the expense the carrier should spare in order to save a life."
CALEA continued to evolve, shaped by the ongoing arguments over the terms of its birth. Activists and carriers thought that the FBI was reneging on its bargain, asking for more than the law allowed. The FBI believed that carriers were stalling when they failed to meet compliance deadlines. As all sides dug in, the meetings on implementation turned bitter. FBI and Justice officials slammed their hands on tables and screamed at carrier representatives, Gidari recalls. "You're unpatriotic! What do you want to do, help the criminals?"
The government asked those same questions after September 11, 2001. And this time, telecommunications carriers responded. Outside the normal FISA warrant process, which covers intelligence-gathering, carriers opened access to their networks, their customer call data, and their valuable transactional information -- the kind that CALEA had intended to exclude. President Bush and his administration believed that the extraordinary nature of the terrorist attacks demanded emergency actions that FISA couldn't accommodate, and the carriers answered the call from law enforcement and intelligence agencies. But government officials also seized on the post-9/11 mentality to change other surveillance laws and procedures, which they believed -- just as their predecessors did in 1994 -- were out of step with technology and reality. About three years after 9/11, officials set their sights on rewriting CALEA.
Claiming The Internet
In August 2004, in response to a petition by the Justice Department, the FBI, and the Drug Enforcement Administration, the FCC expanded CALEA to cover Internet communications, including voice calls and instant messages. The Electronic Frontier Foundation sued, along with industry, civil-liberties, and academic groups. In 2005, the Court of Appeals ruled 2-1 to defer to the FCC's reading of the law.
Many of those who had helped craft CALEA believed that the commission had misread the law and acted on a post-9/11 impulse to give the government more, not less, access to information. But to the FCC, new Internet technologies that operate a lot like telephones blurred the distinction between "information services" and the kinds of technology that CALEA was meant to cover.
After 9/11, law enforcement and intelligence agencies took a variety of measures, apart from wiretaps, to collect and mine potentially valuable information from the Internet. With the cooperation of telecom companies, government accumulated lots of transactional data -- including e-mail header information and lists of websites visited by targeted individuals -- to support counter-terrorism operations. Viewed solely as a reaction to the terrorist attacks of 2001, this kind of collection might seem extraordinary. But through the longer lens of history, the government's steady march into cyberspace is not surprising.
Law enforcement agencies have never suffered for lack of access to the phone network. Kallstrom recalls only a few instances in which agents were unable to execute a wiretap order because of new technology. But as digital, mobile technology has proliferated, the copper lug nuts that Kallstrom remembers from the 1980s have disappeared. Today, state and federal agents spend most of their tap time on mobile devices. In 1994, most wiretaps, by far, targeted private residences. There were few taps on mobile devices. Ten years later, 88 percent of the 1,710 wiretaps were on mobile devices. Only 5 percent were on residential lines. Without CALEA, some experts believe that Kallstrom's initial fears would have come true and the federal government would have been shut out of the wiretapping business.
Jerry Berman never wanted that to happen. Although he cannot accept that the law that was meant to minimize the government's influence over the Internet is now being used to facilitate it, he is willing to negotiate on CALEA again, if that is what's necessary to satisfy all parties.
That willingness to talk extends to FISA, as well, and Berman's Center for Democracy and Technology has been actively involved in the current agitations over the law. But whenever he and his cohorts have extended the hand of compromise to Congress or the administration, he says, they have been disappointed. Any attempt to revamp FISA, or to clarify CALEA, "is impossible in the current climate," Berman says. "There is no sense that you could get the kind of negotiation we got in 1994."
FISA And CALEA
One has to wonder how strong that spirit of compromise really was in 1994, and whether it was already ebbing. If the FBI was willing to take what it could get on CALEA and go on to fight another day, did the government really "settle" at all? Literally weeks after CALEA was signed the Justice Department and the FBI came roaring back with new demands. What killed the penchant for negotiation? Was it the moderates' loss of power in both political parties after the 1994 Republican revolution? Was it the entrenchment of civil-liberties activists? Was it the Bush White House's extravagant interpretation of executive power? Was it 9/11?
Berman spends a lot of time pondering these questions and thinking about next moves. He divides his time between Washington, where he chairs his group's board of directors, and a home he built on the Cacapon River near Berkeley Springs, W.Va. "We just have people in bunkers now," Berman says ruefully.
The FISA debate is currently hung up on whether companies that assisted warrantless surveillance after 9/11 should have retroactive legal immunity for any laws they may have broken. CALEA has something to say about that, too. The law requires that carriers be able to deliver call identification information to the government remotely. According to Beryl Howell, Sen. Leahy's lead CALEA staffer, that provision was meant to keep government agents from sitting in the phone companies' offices to execute their wiretaps.
It is a basic tenet of wiretapping law, whether for intelligence or law enforcement, that the communications companies act as a buffer between their customers and the government, she says, and that telecom carriers must make their own determination whether official requests are, in fact, legal. That the companies would now assert, in defense of their cooperation, that the government determined that post-9/11 requests were legal, strikes Howell as outrageous.
If ever there was a time for the bare-knuckled negotiations of the past, it's now. It's not at all clear, though, who could play the role of Jerry Berman, the one to bring people into the room to scream and yell at each other and emerge feeling better for it -- and possibly even coming to a compromise. As things stand, Congress appears more likely to punt the FISA debate to the new administration, and has shown little interest in revisiting CALEA.
The constant tension that once kept this system in balance has reached a breaking point. There is no push and pull. Maybe the stakes are too high for compromise. But until that spirit returns, Berman says, "there will be no peace."
Published in National Journal
Labels: Foreign Intelligence Surveillance Act, Intelligence, Law, Politics, Technology, Terrorism
Full Article
Iran Estimate: Debate Persists
Friday, February 22, 2008
On December 3, 2007, Director of National Intelligence Mike McConnell declassified a set of key judgments from a National Intelligence Estimate on Iran's efforts to build a nuclear weapon. The judgments may have contained some good news -- namely, "that in fall 2003, Tehran halted its nuclear weapons program" -- but few in the upper ranks of the Bush administration warmly embraced this declaration.
Indeed, in the month after the release, McConnell and President Bush publicly distanced themselves from the NIE's dramatic headline. Key American allies went further: The French defense minister and the head of Israeli intelligence declared the NIE wrong, contending that Iran's weapons work continues.
All of those officials, who play key roles in pressing for further international sanctions against Iran, say that Tehran continues to publicly enrich uranium under the implausible auspices of a civilian energy program, and that it continues to test-fire ballistic missiles. Bush used his State of the Union address to remind the world of these two facts and to assert that Iran remains as much of a threat as it was before December 3.
With the key judgments public, intelligence officials and weapons experts are in a definitional sparring match over what constitutes a nuclear weapons program, whether the NIE should have been released at all, and how the estimate was written. The key judgments acknowledged the points that Bush made in his speech. But the final document emphasized the riveting new information about the halted "nuclear weapons program" rather than Iran's ongoing enrichment and missile activities.
Furthermore, the NIE narrowly defines the program as consisting of weapons "design work," presumably for a warhead that can be put atop a missile, plus some covert enrichment activities. The estimate explicitly states that the weapons program does not include Iran's publicly acknowledged uranium enrichment work, which Tehran says is aimed at low-level enrichment that can be used for civilian nuclear power. Skeptics say that if Iran masters low-level uranium enrichment it can eventually develop the high-level enrichment necessary for a nuclear bomb.
The definition of what exactly constitutes a weapons program is important, but the key judgments relegated it to a footnote. Some former intelligence officials say that the footnoted information could have been stated more boldly, and they speculate whether the key judgments were deliberately written in such a way as to convince readers that Iran's nuclear threat has lessened. Intelligence estimates, by definition, are supposed to state the views of the intelligence community, not to argue policy, these former officials say.
There is little evidence to indicate that intelligence analysts are trying to pre-empt a U.S. invasion of Iran by undercutting the Bush administration's ostensible rationale for such action. But the NIE leaves many of the intelligence community's supporters wondering if its authors grasped how the document would be read -- quickly, incautiously, and through political lenses. If the NIE was meant to clarify matters on Iran, it has arguably failed.
A number of longtime intelligence analysts and weapons experts, including those who have helped draft NIEs in the past and hold no particular allegiance to Bush, criticize the key judgments as poorly written, politically tone-deaf, and betraying a fundamental misunderstanding of what actually constitutes a nuclear weapons program.
Production of fissile material -- highly enriched uranium, or plutonium -- is generally viewed as the long pole in the nuclear tent. Once a country overcomes that hurdle, the path to a finished nuclear weapon is downhill. Iran may have halted some design activities, but how significant is that in light of its continuing low-level uranium enrichment and missile testing? As one former intelligence official with experience in NIEs put it, the intelligence community seemed to go to great lengths to answer the least important question -- the work on a warhead design.
Defenders of the NIE, including the senior officials and analysts who wrote it, counter that the document is the product of new, compelling information and a rigorous, top-to-bottom scrubbing of all the known intelligence about Iranian nuclear issues. One former senior intelligence official close to the NIE's drafters said that journalists had blown the top finding out of proportion. Indeed, the clause immediately following the opening sentence, which declared that the program was halted in 2003, reads, "We also assess with moderate-to-high confidence that Tehran at a minimum is keeping open the option to develop nuclear weapons."
The key judgments clearly didn't give the Iranians a "clean bill of health," says Jeffrey Lewis, who directs the Nuclear Strategy and Nonproliferation Initiative at the New America Foundation and runs the blog ArmsControlWonk.com. "The press reporting took a badly written NIE and pulled out probably the least important fact, or misidentified what the NIE said," Lewis argues.
Reporters weren't the only ones to run with the headline, however. Meir Dagan, the head of Mossad, Israel's intelligence service, blasted the key judgments before a Knesset committee earlier this month. The document "pulls the rug out from under" the push for stricter Iran sanctions, he said. The U.S. estimate leaves "Israel to face the threat alone," Dagan added.
A few days earlier, the French defense minister, Herve Morin, said during a visit to Washington, "Coordinated information from a number of intelligence services" had led the French to believe that Iran is "continuing to develop" a nuclear weapon.
Both Dagan and Morin presumably have access to information that was not contained in the declassified judgments. But even the U.S. intelligence community's top man has publicly tried to shift attention away from the NIE's conclusion about Iran's narrowly defined weapons program. McConnell, like Bush, has been far more emphatic about the threat that Iran poses. Eschewing the hedged language of his analysts -- "high confidence," "moderate confidence" -- his assessments are more rigid and more focused on Iran's growing strength. In a lengthy January profile in The New Yorker, McConnell said, "There's no doubt in this observer's mind that Iran is on the path to get a nuclear weapon. It will force an arms race in the region."
Where Iran lies on its road to nuclear status may be up for debate. But on one fact, all sides agree: Without all of the key components -- fissile material, a compact and resilient warhead, and a long-range missile to deliver it -- Iran has no nuclear weapon. Could Iran make a nuclear device that might work? Maybe. Does it have the technological infrastructure to go further? Certainly. But does Iran have a viable, long-range weapon with which to threaten its neighbors? No.
And perhaps that was the intelligence community's point in the NIE. If the Iranian nuclear program were likened to a three-legged stool, then one leg -- the weapons design -- was taken out nearly five years ago. It could be repaired, but in the meantime, the stool is useless.
"I turn the tables on the critics of the NIE," says George Friedman, the head of Stratfor, a private intelligence firm. "Lay out the number of components you need to produce a weapon. If there is one that the Iranians weren't working on, they have no program."
But this assessment may ignore the political realities of Iranian nuclear ambitions. Tehran's possession of even a rudimentary nuclear device could fundamentally upset the regional power balance. "Would you like to have to convince Israel or the Saudis not to worry that these devices are too large and crude to be delivered by missiles?" asks David Kay. He is the former United Nations chief weapons inspector who led the 2003 Iraq Survey Group that found that Saddam Hussein no longer possessed weapons of mass destruction. "Nukes are less about war fighting than about politics by other means," he says.
Kay adds that the intelligence community is apparently conflicted about Iran's capabilities and its intentions. A bullet point within the key judgments states, parenthetically, that because of "intelligence gaps," the Energy Department and the National Intelligence Council "assess with only moderate confidence" that Iran's 2003 halt to the weapons design program represented a stop to the "entire nuclear weapons program."
"That's a direct contradiction of the first sentence," which declared that the program had halted, Kay says, "and yet it doesn't come after the first sentence, which implies that all 16 agencies are in agreement." The Energy Department's less confident view is especially worrisome, Kay says, because DOE oversees the nation's nuclear laboratories and has the most nuclear weapons expertise within the intelligence community.
For his part, McConnell appears to understand that his release of the key judgments has affected not only the political climate but also the future work of his analysts and spies. He told The New Yorker, "I think putting it out was the right thing." But he admitted that the intelligence community continues to need better information to verify if Iran has restarted its weapons design work.
"Our job is to steal the secrets of foreign governments or foreign terrorist organizations, and so the more they know about the effectiveness of our tradecraft the more difficult it's going to be for us," McConnell said. "For the community I represent, I just made our life a lot harder."
Published in National Journal
Friday, February 22, 2008
On December 3, 2007, Director of National Intelligence Mike McConnell declassified a set of key judgments from a National Intelligence Estimate on Iran's efforts to build a nuclear weapon. The judgments may have contained some good news -- namely, "that in fall 2003, Tehran halted its nuclear weapons program" -- but few in the upper ranks of the Bush administration warmly embraced this declaration.
Indeed, in the month after the release, McConnell and President Bush publicly distanced themselves from the NIE's dramatic headline. Key American allies went further: The French defense minister and the head of Israeli intelligence declared the NIE wrong, contending that Iran's weapons work continues.
All of those officials, who play key roles in pressing for further international sanctions against Iran, say that Tehran continues to publicly enrich uranium under the implausible auspices of a civilian energy program, and that it continues to test-fire ballistic missiles. Bush used his State of the Union address to remind the world of these two facts and to assert that Iran remains as much of a threat as it was before December 3.
With the key judgments public, intelligence officials and weapons experts are in a definitional sparring match over what constitutes a nuclear weapons program, whether the NIE should have been released at all, and how the estimate was written. The key judgments acknowledged the points that Bush made in his speech. But the final document emphasized the riveting new information about the halted "nuclear weapons program" rather than Iran's ongoing enrichment and missile activities.
Furthermore, the NIE narrowly defines the program as consisting of weapons "design work," presumably for a warhead that can be put atop a missile, plus some covert enrichment activities. The estimate explicitly states that the weapons program does not include Iran's publicly acknowledged uranium enrichment work, which Tehran says is aimed at low-level enrichment that can be used for civilian nuclear power. Skeptics say that if Iran masters low-level uranium enrichment it can eventually develop the high-level enrichment necessary for a nuclear bomb.
The definition of what exactly constitutes a weapons program is important, but the key judgments relegated it to a footnote. Some former intelligence officials say that the footnoted information could have been stated more boldly, and they speculate whether the key judgments were deliberately written in such a way as to convince readers that Iran's nuclear threat has lessened. Intelligence estimates, by definition, are supposed to state the views of the intelligence community, not to argue policy, these former officials say.
There is little evidence to indicate that intelligence analysts are trying to pre-empt a U.S. invasion of Iran by undercutting the Bush administration's ostensible rationale for such action. But the NIE leaves many of the intelligence community's supporters wondering if its authors grasped how the document would be read -- quickly, incautiously, and through political lenses. If the NIE was meant to clarify matters on Iran, it has arguably failed.
A number of longtime intelligence analysts and weapons experts, including those who have helped draft NIEs in the past and hold no particular allegiance to Bush, criticize the key judgments as poorly written, politically tone-deaf, and betraying a fundamental misunderstanding of what actually constitutes a nuclear weapons program.
Production of fissile material -- highly enriched uranium, or plutonium -- is generally viewed as the long pole in the nuclear tent. Once a country overcomes that hurdle, the path to a finished nuclear weapon is downhill. Iran may have halted some design activities, but how significant is that in light of its continuing low-level uranium enrichment and missile testing? As one former intelligence official with experience in NIEs put it, the intelligence community seemed to go to great lengths to answer the least important question -- the work on a warhead design.
Defenders of the NIE, including the senior officials and analysts who wrote it, counter that the document is the product of new, compelling information and a rigorous, top-to-bottom scrubbing of all the known intelligence about Iranian nuclear issues. One former senior intelligence official close to the NIE's drafters said that journalists had blown the top finding out of proportion. Indeed, the clause immediately following the opening sentence, which declared that the program was halted in 2003, reads, "We also assess with moderate-to-high confidence that Tehran at a minimum is keeping open the option to develop nuclear weapons."
The key judgments clearly didn't give the Iranians a "clean bill of health," says Jeffrey Lewis, who directs the Nuclear Strategy and Nonproliferation Initiative at the New America Foundation and runs the blog ArmsControlWonk.com. "The press reporting took a badly written NIE and pulled out probably the least important fact, or misidentified what the NIE said," Lewis argues.
Reporters weren't the only ones to run with the headline, however. Meir Dagan, the head of Mossad, Israel's intelligence service, blasted the key judgments before a Knesset committee earlier this month. The document "pulls the rug out from under" the push for stricter Iran sanctions, he said. The U.S. estimate leaves "Israel to face the threat alone," Dagan added.
A few days earlier, the French defense minister, Herve Morin, said during a visit to Washington, "Coordinated information from a number of intelligence services" had led the French to believe that Iran is "continuing to develop" a nuclear weapon.
Both Dagan and Morin presumably have access to information that was not contained in the declassified judgments. But even the U.S. intelligence community's top man has publicly tried to shift attention away from the NIE's conclusion about Iran's narrowly defined weapons program. McConnell, like Bush, has been far more emphatic about the threat that Iran poses. Eschewing the hedged language of his analysts -- "high confidence," "moderate confidence" -- his assessments are more rigid and more focused on Iran's growing strength. In a lengthy January profile in The New Yorker, McConnell said, "There's no doubt in this observer's mind that Iran is on the path to get a nuclear weapon. It will force an arms race in the region."
Where Iran lies on its road to nuclear status may be up for debate. But on one fact, all sides agree: Without all of the key components -- fissile material, a compact and resilient warhead, and a long-range missile to deliver it -- Iran has no nuclear weapon. Could Iran make a nuclear device that might work? Maybe. Does it have the technological infrastructure to go further? Certainly. But does Iran have a viable, long-range weapon with which to threaten its neighbors? No.
And perhaps that was the intelligence community's point in the NIE. If the Iranian nuclear program were likened to a three-legged stool, then one leg -- the weapons design -- was taken out nearly five years ago. It could be repaired, but in the meantime, the stool is useless.
"I turn the tables on the critics of the NIE," says George Friedman, the head of Stratfor, a private intelligence firm. "Lay out the number of components you need to produce a weapon. If there is one that the Iranians weren't working on, they have no program."
But this assessment may ignore the political realities of Iranian nuclear ambitions. Tehran's possession of even a rudimentary nuclear device could fundamentally upset the regional power balance. "Would you like to have to convince Israel or the Saudis not to worry that these devices are too large and crude to be delivered by missiles?" asks David Kay. He is the former United Nations chief weapons inspector who led the 2003 Iraq Survey Group that found that Saddam Hussein no longer possessed weapons of mass destruction. "Nukes are less about war fighting than about politics by other means," he says.
Kay adds that the intelligence community is apparently conflicted about Iran's capabilities and its intentions. A bullet point within the key judgments states, parenthetically, that because of "intelligence gaps," the Energy Department and the National Intelligence Council "assess with only moderate confidence" that Iran's 2003 halt to the weapons design program represented a stop to the "entire nuclear weapons program."
"That's a direct contradiction of the first sentence," which declared that the program had halted, Kay says, "and yet it doesn't come after the first sentence, which implies that all 16 agencies are in agreement." The Energy Department's less confident view is especially worrisome, Kay says, because DOE oversees the nation's nuclear laboratories and has the most nuclear weapons expertise within the intelligence community.
For his part, McConnell appears to understand that his release of the key judgments has affected not only the political climate but also the future work of his analysts and spies. He told The New Yorker, "I think putting it out was the right thing." But he admitted that the intelligence community continues to need better information to verify if Iran has restarted its weapons design work.
"Our job is to steal the secrets of foreign governments or foreign terrorist organizations, and so the more they know about the effectiveness of our tradecraft the more difficult it's going to be for us," McConnell said. "For the community I represent, I just made our life a lot harder."
Published in National Journal
Labels: Director of National Intelligence, Intelligence, Iran
Full Article
The Other About-Face on Iran
Friday, December 14, 2007
In releasing a bombshell about Iran's nuclear program, intelligence director Mike McConnell reversed a vow of secrecy. But he probably had no choice.
"You will be disappointed," Mike McConnell, the director of national intelligence, told a gathering of journalists in Washington on November 13. U.S. spy agencies were putting the finishing touches on a National Intelligence Estimate about Iran's nuclear intentions and capabilities, which included new leads that the agencies had been vetting since spring. But departing from recent practice, McConnell said, "I do not intend to release unclassified key judgments" of the NIE, those heavily edited yet potentially telling morsels of analysis that might ultimately show how close the United States is to a war with Iran.
"We have probably done a thousand of these" NIEs, he said. "We have done unclassified key judgments for maybe three. So we created an expectation that we do this, because we did it previously." And that was a bad idea, McConnell said, with some passion.
For starters, even the "sanitized" version of an NIE could compromise vital sources and methods, he said, because the target of the estimate is, of course, going to read the document. Second, "I don't want to have a situation where the young analysts" -- whom McConnell guards with particular devotion because he was once one of them -- "are writing something because they know it's going to be a public debate or political debate. They should be writing it to call it as it is."
McConnell, whom a longtime colleague describes as having "not a political or manipulative bone in his body," also stated he would "make every effort" to prosecute anyone who leaked the NIE. Then, he vowed (twice) to resign if the intelligence was "cherry-picked in an inappropriate way" by government officials.
Things changed dramatically in the three weeks after McConnell's public denunciation of leaks and declassification. On December 3, McConnell and his aides reversed that decision and released the unclassified key judgments of the NIE on Iran. Try as McConnell might to keep the lid on the new estimate, his lieutenants were influenced by the political realities of intelligence these days.
"They thought it would leak and be distorted, and they thought they'd get ahead of that," said one former senior intelligence official close to the deliberations. "They decided it was better to put out a clean set of key judgments." Vice President Cheney went so far as to say that officials expected to lose control of some classified material. "There was a general belief -- that we all shared -- that it was important to put it out, that it was not likely to stay classified for long, anyway," Cheney told The Politico on December 5. "Everything leaks."
The leak-prevention strategy was a stark departure from the guidelines that McConnell had set out, both in November and a month earlier, when he issued this official policy: "The possibility that the [key judgments] or other positions of an estimate will be leaked is not a sufficient reason for preparing unclassified [key judgments]." In a briefing with reporters after the NIE was released, a senior intelligence official acknowledged that declassification "obviously represents a departure from [McConnell's] guidance."
The banner headline of the key judgments -- "that in fall 2003, Tehran halted its nuclear weapons program" -- put the intelligence community precisely where McConnell didn't want it to be: in the middle of a ferocious political and policy debate in which sources and methods of the intelligence on Iran, as well as the analysis, are being openly discussed, exposed, debated, and, yes, cherry-picked to suit a range of agendas. Indeed, even though the NIE does not say that Iran poses no nuclear threat, the key judgments on areas besides the weapons program have had to compete with the dramatic top-line assessment.
Because the new estimate upends its predecessor, made in 2005, and has undercut any nuclear-related pretext for a U.S. bombing of Iran, the political and ideological dispositions of the analysts who wrote the NIE are, predictably, under scrutiny. Within days of the key judgments' release, former Bush administration officials and neoconservative icons mounted a full-scale attack on McConnell's lieutenants, some of whom had long careers in the State Department and have, the critics contend, historically underestimated Iran.
These critics characterized the NIE as the lieutenants' way of cutting off Cheney and the president on their presumed path to war with Iran -- a contention that wasn't refuted by senior intelligence officials' repeated assertions that Iran's decision to stop its program in 2003 and to keep it shuttered resulted directly from international pressures and sanctions. Indeed, intelligence officials have been careful not to assert that the 2003 invasion of Iraq was the key motivator for Iran's change of plans. Whether McConnell's aides meant to pre-empt the White House or not, the conclusion is undeniable: The intelligence community is at odds with President Bush's forceful rhetoric on Iran.
Since the NIE was released, McConnell has been notably absent from the public fracas. His deputy, Donald Kerr, a veteran nuclear weapons expert, has given the intelligence community's only two on-the-record statements about the estimate. McConnell was out of the country when the key judgments were released.
Around Washington, rumors persist that McConnell threatened to resign over the issue. It's not clear, however, whether he staked his tenure on the NIE being released or withheld, or whether he saw any cherry-picking by the White House, but the gossip is one more measure of just how political the release of this document has become. Observers point out that in the month preceding the NIE, Bush warned that Iran's nuclear ambitions could lead to "World War III," and Cheney, four days later, gave a bellicose speech reminiscent of the run-up to war with Iraq over its weapons programs. The White House already knew by then, at a minimum, that the intelligence community was vetting potentially groundbreaking intelligence on Iran that could change the NIE.
Perhaps under pressure to back up their bold new claims on Iran, senior officials have gone further, giving on-background press interviews in which they catalog the streams of intelligence that led the analysts to change their nuclear conclusions -- purloined laptop computers loaded with weapons diagrams; notebooks and intercepted phone calls from high-ranking officials; and, as reported by the Los Angeles Times this week, a clandestine operation called "Brain Drain," in which the CIA helped mid- and top-level Iranian nuclear experts flee the country.
Unless officials are trying to affect the Iranian government's actions through a massive disinformation campaign, it would seem that the intelligence community has set aside McConnell's concerns about sources and methods. "I'm shocked by the level of public discussion," said a former senior intelligence official who worked on Iranian issues for many years, adding, "I don't see much good that comes from releasing NIEs."
Kerr has said that the release "was coordinated in discussion with senior policy makers," but that the intelligence community "took responsibility for what portions ... were to be declassified." Officials weighed "the importance of the information to open discussions about our national security" against protecting sources and methods, he said, and "felt it was important to release this information to ensure that an accurate presentation is available."
Still, only a dramatic turn of events would have led McConnell to abandon his policy of not making NIEs public, several former officials who know him said. One former high-ranking official involved in clandestine operations said that in more than 30 years in the intelligence business, he had never seen a key judgment change so dramatically so fast -- indicating that the new intelligence that officials picked up amounted to a veritable "smoking gun."
"Keep in mind, this thing had been built up, which is somewhat unusual for an NIE," said another former senior official, who has also worked on Capitol Hill. The document was months behind schedule, widely anticipated, and focused on one of the top foreign-policy issues of the moment. "I think this was an extraordinary circumstance," the former official said.
Expressing concern over the public airing of sources, a Senate staffer said that the NIE "has certainly been sucked into a political debate," and that McConnell is clearly concerned about the effect that the fallout might have on analysts. "For that, we will have to wait and see," the aide said. "I still think that he simply had no choice. There was no way this would stay secret, and he didn't want to be accused of trying to bury it. I think he held his nose and let it go."
Many intelligence professionals concur. And in the NIE's release, they see signs not of an outright insurrection against the Bush administration but of a reassertion by the intelligence community of its ability to influence policy -- public or otherwise. McConnell's team is hardly backing down in the face of the neocon onslaught. Last Saturday, Kerr shot back at the NIE's critics in an unusual and terse public statement. Labeled "In response to those questioning the analytic work and integrity of the United States intelligence community," Kerr's statement said that the agencies' "task ... is to produce objective, ground-truth analysis. We feel confident in our analytic tradecraft and resulting analysis in this estimate."
So there.
Published in National Journal.
Friday, December 14, 2007
In releasing a bombshell about Iran's nuclear program, intelligence director Mike McConnell reversed a vow of secrecy. But he probably had no choice.
"You will be disappointed," Mike McConnell, the director of national intelligence, told a gathering of journalists in Washington on November 13. U.S. spy agencies were putting the finishing touches on a National Intelligence Estimate about Iran's nuclear intentions and capabilities, which included new leads that the agencies had been vetting since spring. But departing from recent practice, McConnell said, "I do not intend to release unclassified key judgments" of the NIE, those heavily edited yet potentially telling morsels of analysis that might ultimately show how close the United States is to a war with Iran.
"We have probably done a thousand of these" NIEs, he said. "We have done unclassified key judgments for maybe three. So we created an expectation that we do this, because we did it previously." And that was a bad idea, McConnell said, with some passion.
For starters, even the "sanitized" version of an NIE could compromise vital sources and methods, he said, because the target of the estimate is, of course, going to read the document. Second, "I don't want to have a situation where the young analysts" -- whom McConnell guards with particular devotion because he was once one of them -- "are writing something because they know it's going to be a public debate or political debate. They should be writing it to call it as it is."
McConnell, whom a longtime colleague describes as having "not a political or manipulative bone in his body," also stated he would "make every effort" to prosecute anyone who leaked the NIE. Then, he vowed (twice) to resign if the intelligence was "cherry-picked in an inappropriate way" by government officials.
Things changed dramatically in the three weeks after McConnell's public denunciation of leaks and declassification. On December 3, McConnell and his aides reversed that decision and released the unclassified key judgments of the NIE on Iran. Try as McConnell might to keep the lid on the new estimate, his lieutenants were influenced by the political realities of intelligence these days.
"They thought it would leak and be distorted, and they thought they'd get ahead of that," said one former senior intelligence official close to the deliberations. "They decided it was better to put out a clean set of key judgments." Vice President Cheney went so far as to say that officials expected to lose control of some classified material. "There was a general belief -- that we all shared -- that it was important to put it out, that it was not likely to stay classified for long, anyway," Cheney told The Politico on December 5. "Everything leaks."
The leak-prevention strategy was a stark departure from the guidelines that McConnell had set out, both in November and a month earlier, when he issued this official policy: "The possibility that the [key judgments] or other positions of an estimate will be leaked is not a sufficient reason for preparing unclassified [key judgments]." In a briefing with reporters after the NIE was released, a senior intelligence official acknowledged that declassification "obviously represents a departure from [McConnell's] guidance."
The banner headline of the key judgments -- "that in fall 2003, Tehran halted its nuclear weapons program" -- put the intelligence community precisely where McConnell didn't want it to be: in the middle of a ferocious political and policy debate in which sources and methods of the intelligence on Iran, as well as the analysis, are being openly discussed, exposed, debated, and, yes, cherry-picked to suit a range of agendas. Indeed, even though the NIE does not say that Iran poses no nuclear threat, the key judgments on areas besides the weapons program have had to compete with the dramatic top-line assessment.
Because the new estimate upends its predecessor, made in 2005, and has undercut any nuclear-related pretext for a U.S. bombing of Iran, the political and ideological dispositions of the analysts who wrote the NIE are, predictably, under scrutiny. Within days of the key judgments' release, former Bush administration officials and neoconservative icons mounted a full-scale attack on McConnell's lieutenants, some of whom had long careers in the State Department and have, the critics contend, historically underestimated Iran.
These critics characterized the NIE as the lieutenants' way of cutting off Cheney and the president on their presumed path to war with Iran -- a contention that wasn't refuted by senior intelligence officials' repeated assertions that Iran's decision to stop its program in 2003 and to keep it shuttered resulted directly from international pressures and sanctions. Indeed, intelligence officials have been careful not to assert that the 2003 invasion of Iraq was the key motivator for Iran's change of plans. Whether McConnell's aides meant to pre-empt the White House or not, the conclusion is undeniable: The intelligence community is at odds with President Bush's forceful rhetoric on Iran.
Since the NIE was released, McConnell has been notably absent from the public fracas. His deputy, Donald Kerr, a veteran nuclear weapons expert, has given the intelligence community's only two on-the-record statements about the estimate. McConnell was out of the country when the key judgments were released.
Around Washington, rumors persist that McConnell threatened to resign over the issue. It's not clear, however, whether he staked his tenure on the NIE being released or withheld, or whether he saw any cherry-picking by the White House, but the gossip is one more measure of just how political the release of this document has become. Observers point out that in the month preceding the NIE, Bush warned that Iran's nuclear ambitions could lead to "World War III," and Cheney, four days later, gave a bellicose speech reminiscent of the run-up to war with Iraq over its weapons programs. The White House already knew by then, at a minimum, that the intelligence community was vetting potentially groundbreaking intelligence on Iran that could change the NIE.
Perhaps under pressure to back up their bold new claims on Iran, senior officials have gone further, giving on-background press interviews in which they catalog the streams of intelligence that led the analysts to change their nuclear conclusions -- purloined laptop computers loaded with weapons diagrams; notebooks and intercepted phone calls from high-ranking officials; and, as reported by the Los Angeles Times this week, a clandestine operation called "Brain Drain," in which the CIA helped mid- and top-level Iranian nuclear experts flee the country.
Unless officials are trying to affect the Iranian government's actions through a massive disinformation campaign, it would seem that the intelligence community has set aside McConnell's concerns about sources and methods. "I'm shocked by the level of public discussion," said a former senior intelligence official who worked on Iranian issues for many years, adding, "I don't see much good that comes from releasing NIEs."
Kerr has said that the release "was coordinated in discussion with senior policy makers," but that the intelligence community "took responsibility for what portions ... were to be declassified." Officials weighed "the importance of the information to open discussions about our national security" against protecting sources and methods, he said, and "felt it was important to release this information to ensure that an accurate presentation is available."
Still, only a dramatic turn of events would have led McConnell to abandon his policy of not making NIEs public, several former officials who know him said. One former high-ranking official involved in clandestine operations said that in more than 30 years in the intelligence business, he had never seen a key judgment change so dramatically so fast -- indicating that the new intelligence that officials picked up amounted to a veritable "smoking gun."
"Keep in mind, this thing had been built up, which is somewhat unusual for an NIE," said another former senior official, who has also worked on Capitol Hill. The document was months behind schedule, widely anticipated, and focused on one of the top foreign-policy issues of the moment. "I think this was an extraordinary circumstance," the former official said.
Expressing concern over the public airing of sources, a Senate staffer said that the NIE "has certainly been sucked into a political debate," and that McConnell is clearly concerned about the effect that the fallout might have on analysts. "For that, we will have to wait and see," the aide said. "I still think that he simply had no choice. There was no way this would stay secret, and he didn't want to be accused of trying to bury it. I think he held his nose and let it go."
Many intelligence professionals concur. And in the NIE's release, they see signs not of an outright insurrection against the Bush administration but of a reassertion by the intelligence community of its ability to influence policy -- public or otherwise. McConnell's team is hardly backing down in the face of the neocon onslaught. Last Saturday, Kerr shot back at the NIE's critics in an unusual and terse public statement. Labeled "In response to those questioning the analytic work and integrity of the United States intelligence community," Kerr's statement said that the agencies' "task ... is to produce objective, ground-truth analysis. We feel confident in our analytic tradecraft and resulting analysis in this estimate."
So there.
Published in National Journal.
Labels: Director of National Intelligence, Intelligence, Iran, Management, Politics
Full Article
Telecoms as Trojan Horses
Friday, December 07, 2007
The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency's warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats' best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.
House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn't protect those companies, and granting them immunity would effectively end the lawsuits against them.
The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA's warrantless activities, called the suits "perhaps the only avenue that exists for an outside review of the government's program, and an honest assessment of its legal arguments."
Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits "would likely prevent courts from ruling on the president's illegal warrantless wiretapping program." He emphasized, "This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all."
Most Senate Republicans support unconditional immunity -- and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.
Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don't want to see the telecoms put out of business because of their role in it. But they're also not prepared to let the telecoms off the hook completely.
As a Judiciary Committee staffer told National Journal, Leahy "doesn't support full, retroactive immunity but also doesn't want to see these companies bankrupted due to the administration's actions."
Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn't be "held hostage to costly litigation in what is essentially a complaint about administration activities." The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, "The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits."
Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate's version, if the latter chamber can come to some consensus that doesn't allow blanket immunity. Senators are haggling over whether something less than immunity -- "accountability" for the companies, some have called it -- would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration's culpability in court.
That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity "would carry the day" when it came time to finalizing a FISA renewal.
Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.
In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members "showed a willingness" to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see." The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.
A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president's blessing.
That conclusion has formed the basis of most committee members' thinking on the immunity question. "There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group," the aide said.
In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The "extraordinary nature" of the period following the 9/11 attacks, coupled with the administration's assurances that new intelligence activities were designed to "detect and prevent the next terrorist attack," convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.
"This immunity provision is not the broad and vague immunity sought by the administration," Rockefeller wrote in additional comments in the report. It "does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings." The panel's provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.
"The committee did not endorse the immunity provision lightly," Rockefeller continued. "I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program."
The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.
Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee's ranking member, to substitute the government for the companies as the defendant in the civil cases.
At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which "there would still be immunity, but the government would be responsible for whatever damages, if any, were offered." Minority Leader Mitch McConnell, R-Ky., signaled Republicans' opposition to that approach -- "Taxpayers shouldn't have to foot the bill," he said -- which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they've ever been in the two years since the NSA program was publicly exposed.
Published in National Journal
Friday, December 07, 2007
The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency's warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats' best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.
House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn't protect those companies, and granting them immunity would effectively end the lawsuits against them.
The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA's warrantless activities, called the suits "perhaps the only avenue that exists for an outside review of the government's program, and an honest assessment of its legal arguments."
Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits "would likely prevent courts from ruling on the president's illegal warrantless wiretapping program." He emphasized, "This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all."
Most Senate Republicans support unconditional immunity -- and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.
Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don't want to see the telecoms put out of business because of their role in it. But they're also not prepared to let the telecoms off the hook completely.
As a Judiciary Committee staffer told National Journal, Leahy "doesn't support full, retroactive immunity but also doesn't want to see these companies bankrupted due to the administration's actions."
Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn't be "held hostage to costly litigation in what is essentially a complaint about administration activities." The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, "The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits."
Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate's version, if the latter chamber can come to some consensus that doesn't allow blanket immunity. Senators are haggling over whether something less than immunity -- "accountability" for the companies, some have called it -- would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration's culpability in court.
That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity "would carry the day" when it came time to finalizing a FISA renewal.
Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.
In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members "showed a willingness" to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see." The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.
A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president's blessing.
That conclusion has formed the basis of most committee members' thinking on the immunity question. "There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group," the aide said.
In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The "extraordinary nature" of the period following the 9/11 attacks, coupled with the administration's assurances that new intelligence activities were designed to "detect and prevent the next terrorist attack," convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.
"This immunity provision is not the broad and vague immunity sought by the administration," Rockefeller wrote in additional comments in the report. It "does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings." The panel's provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.
"The committee did not endorse the immunity provision lightly," Rockefeller continued. "I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program."
The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.
Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee's ranking member, to substitute the government for the companies as the defendant in the civil cases.
At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which "there would still be immunity, but the government would be responsible for whatever damages, if any, were offered." Minority Leader Mitch McConnell, R-Ky., signaled Republicans' opposition to that approach -- "Taxpayers shouldn't have to foot the bill," he said -- which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they've ever been in the two years since the NSA program was publicly exposed.
Published in National Journal
Labels: Foreign Intelligence Surveillance Act, Law, National Security Agency, Politics
Full Article
NSA Sought Data Before 9/11
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Labels: Cyber War, Law, National Security Agency, Technology, Terrorism
Full Article
A Court at the Crossroads
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Labels: Director of National Intelligence, Foreign Intelligence Surveillance Act, Intelligence, National Security Agency, Politics, Terrorism
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