Political Crime and Security Culture

By Lauren on December 17, 2005

The outrageous news from yesterday pushes me to believe that, even as non-violent and non-activist citizens, we need to cultivate a security culture. Though the preliminary reports are likely incomplete, the information provided by the Times and WaPo, expanded upon by Hilzoy, Terrance, and Avedon Carol, is chilling.

More disturbing is that the Times had this story for over a year and, for whatever reason, did not publish the information. Election politics? The Times also did not disclose what circumstances surrounding the story changed, enabling them to publish the story after sitting on it for a year. To our detriment.

Worse, Bush came out today defending his use of this arguably unconstitutional practice citing that the American people want him to do whatever it takes to “protect” us, and assuring us that it had been cleared by the Justice Department. Thankfully many politicians are refusing to toe a party line and defend the president on this business. Arlen Specter, Judiciary Committee Chairman and Pennsylvania Republican, “planned to investigate use of the wiretaps after the New York Times reported on them. Specter, said such a practice would be ‘clearly and categorically wrong.’”

From Forbes:

According to former officials familiar with the policy, Bush signed an executive order in 2002 granting new surveillance powers to the National Security Agency — the branch of the U.S. intelligence services responsible for international eavesdropping, and whose existence was long denied by the government.

“I want to know precisely what they did: how NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was … and we will go from there,” Specter said.

I’m donning my tinfoil cap. *cough*

Also read Bush on Wiretapping : I Did It And I’ll Do It Again, and for a more political angle, Bush’s Critics Are Absolutely Right: The President Must Not be Above the Law

Update: Ezra gets at the heart of the matter. via Majikthise

26 Responses

norbizness December 17, 2005 at 2:37 pm | Permalink

Fourth Amendment, Schmourth Amendment. Wasn’t it Ben Franklin that said “Those who do whatever it takes to sacrifice liberty for security shall go down as a lamentable blot in American history”?
Hello Bitchy! December 17, 2005 at 2:40 pm | Permalink

heh. Before I clicked on the link for security culture, I was going to point you at Public Eye, which used to have something very similar.

I was in the information security biz for awhile–still am, actually, I’m just not writing about it on a daily basis like I used to. You don’t even want to know what goes on in corporations. If I had more time, I would write an even longer, more detailed guide. Plus, a “Top Ten Signs You’re Becomeing Too Paranoid” guide. :)
Lauren December 17, 2005 at 2:40 pm | Permalink

Poor Richard is spinning in his grave.
Robert December 17, 2005 at 2:42 pm | Permalink

I think Jeff pretty much covers this one.

I’ll look forward to the outraged demands for an investigation of who leaked this material, which endangers American security and puts lives at risk, from everyone who went ballistic over the Plame affair.
Lauren December 17, 2005 at 2:45 pm | Permalink

Hm, knowledge this is occurring illegally, or leak investigation? Right.
norbizness December 17, 2005 at 2:49 pm | Permalink

I always have a little bit more sympathy for those who whiste-blow on illegal activities, but if that’s what it takes, Robert (dual investigations of the leak and the conduct revealed by the leak), then I’m all for it.
Robert December 17, 2005 at 2:49 pm | Permalink

What law do you allege is being broken?
Jeff G December 17, 2005 at 2:50 pm | Permalink

The New York Times never said the Bushies were doing anything illegal, you’ll note. And a Dem strategist moments ago on one of the news channels backpeddled and noted she believed the Times was wrong to print the story.

When the smoke clears — if it turns out all was done legally and without a single tear to the Constitution — will you promise to devote your outrage to the leakers? Or is national security too quaint — outrage only goes with Speaking Truth to Power?

Please let me know. Because I really am curious.
Lauren December 17, 2005 at 2:55 pm | Permalink

I second Norbizness.
Dianne December 17, 2005 at 3:03 pm | Permalink

I’m donning my tinfoil cap

Don’t do it, they only increase the government’s ability to read you mind.
Robert December 17, 2005 at 3:06 pm | Permalink

I’m confused. What is it that you want investigated, exactly? The existence of the NSA? The executive authority of the President? The existence of al-Qaeda?
Lauren December 17, 2005 at 3:14 pm | Permalink

NSA/COINTELPRO was a joke, dear humorist. Your outrage is directed where?
zuzu December 17, 2005 at 3:56 pm | Permalink

How about an investigation why the administration didn’t bother getting court warrants to set up wiretaps, as required by the Foreign Intelligence Surveillance Act and the Fourth Amendment?

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. 17

It may well be that, in the instant case, the Government’s surveillance of Plamondon’s conversations was a reasonable one which readily would have gained prior judicial approval. But this Court “has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.” Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment, 18 not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963). The independent check upon executive discretion is not [407 U.S. 297, 318] satisfied, as the Government argues, by “extremely limited” post-surveillance judicial review. 19 Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S. 89, 96 (1964).

…

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

We cannot accept the Government’s argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of “ordinary crime.” If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long [407 U.S. 297, 321] involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.

Thus, we conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government’s domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.

UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)
Chris Clarke December 17, 2005 at 4:42 pm | Permalink

Shorter Robert: “Exposing illegal activity, illegally exposing activity. What’s the diff?”
Linnaeus December 17, 2005 at 5:23 pm | Permalink

Here’s something else that looks troubling:

A senior at UMass Dartmouth was visited by federal agents two months ago, after he requested a copy of Mao Tse-Tung’s tome on Communism called “The Little Red Book.”
Two history professors at UMass Dartmouth, Brian Glyn Williams and Robert Pontbriand, said the student told them he requested the book through the UMass Dartmouth library’s interlibrary loan program.

The student, who was completing a research paper on Communism for Professor Pontbriand’s class on fascism and totalitarianism, filled out a form for the request, leaving his name, address, phone number and Social Security number. He was later visited at his parents’ home in New Bedford by two agents of the Department of Homeland Security, the professors said.
The professors said the student was told by the agents that the book is on a “watch list,” and that his background, which included significant time abroad, triggered them to investigate the student further.

Unless there’s a lot more that I don’t know about, this is pretty astounding to me.

On the other hand, there’s a sense among some in the F.B.I. that they’re not getting the access they need, including this tidbit:

One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.

“While radical militant librarians kick us around, true terrorists benefit from OIPR’s failure to let us use the tools given to us,” read the e-mail message, which was sent by an unidentified F.B.I. official. “This should be an OIPR priority!!!”

An instutitional culture that lays blame at the foot of “radical militant librarians” seems to me to be one that warrants restraint, rather than expanded powers. Honestly, I don’t think one needs to be some wild-eyed radical to be concerned about this kind of thing.
EricP December 17, 2005 at 5:23 pm | Permalink

The irony here is that if you as an American call or are called by someone in a foreign country (which this is all about), chances are that that the foreign country could already be listening in anyway. I’m in Canada and call Americans every day and I get calls too. CSIS could already be listening anyway and I certainly not concerned that the NSA could be doing it too. Now when someone is harmed in some way by this, there is a story but given the sheer number of international calls going on, I bet that they are very selective and quickly whitelist most numbers.
Scott Lemieux December 17, 2005 at 6:38 pm | Permalink

Shorter Jeff Goldtsein: a real civil libertarian wouldn’t care about warrantless searches performed by a president who asserts that his authority in wartime should be virtually unbounded by law, but would rather be agititating for the aggresive enforcement of the Espinoage Act that was used to throw Eugene Debs in jail for 10 years for making a speech.

Fake libertarianism just keeps gettin’ faker…
r4d20 December 17, 2005 at 6:55 pm | Permalink

This would not be as big a deal if the rightwing, and this admin, had not repeatedly shown that they equate wide areas of political dissent with “treason”. There are legit arguments for doing what he did, but the real problem is that many americans no longer trust that he will only spy on “real” terrorists & supporters.
zuzu December 17, 2005 at 8:52 pm | Permalink

It’s not that surveillance is being done that’s the issue, it’s that the Administration has decided that the procedures which are clearly set out in FISA — that a court warrant be obtained in advance, or, in an emergency, that the court be notified within 72 hours so that it can retroactively issue a warrant — do not have to be followed by them. Rules are for little people.

Getting the warrant does not slow or prevent the gathering of intelligence, but it does create a check on executive-branch power. The Administration has decided that nobody can put any limitations on the president’s power in matters involving terrorism, so they just decided they didn’t have to follow the law.

Of course, Nixon tried this argument, too, and it was not well-received by the Supreme Court.

Another thing I don’t understand is what they planned to do if they wanted to use evidence gathered with one of these illegal wiretaps at trial. They couldn’t use it, and it would actually compromise their efforts at fighting domestic terrorism. But these people aren’t really serious about fighting terrorism, not nearly as serious as they are about asserting power.
Robert December 17, 2005 at 9:21 pm | Permalink

A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.

These calls, apparently, do not meet that criteria. There does not appear to be a legal issue here.
zuzu December 17, 2005 at 10:09 pm | Permalink

A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.

A warrant is also needed if “a United States person” is party to the communication.

Even absent FISA, the Fourth Amendment prohibits warrantless surveillance of US persons.
Jeff G December 18, 2005 at 2:07 am | Permalink

And the “United States person” is mitigated by connection to a foreign power. This is REAL identity politics — and we’ll see to where the President’s wartime authority extends.

Scott Lemieux thinks it cute to question my commitment to civil liberties, but to do so he’s forced to beg the question about “warrantless searches,” which under certain circumstances are within the President’s power to authorize.

Incidentally, I find it amusing that much of the outrage over listening to phone calls of individuals found on Al Qaeda members’ rolodexes after 911 is being proferred by those who would support city-wide smoking bans and the like.

Perhaps if I suggested that careful scrutiny of those plotting our murder would keep us safe from second hand smoke — for the children! — I could get some amens!
zuzu December 18, 2005 at 12:37 pm | Permalink

Jeff, pay attention: it’s not that the wires were tapped.

It’s that the president had the wires tapped without obtaining warrants, either prospectively or retroactively, in violation of FISA and the Fourth Amendment.

Between 1979, when FISA went into effect, and 2002, not one warrant request was denied.

In 2002-3, four requests were denied:

The United States did not appeal any of the Court’s four denials. However, the 2003 FISA report provides additional information about two of the four applications denied:

(1) In one case, the Court issued supplemental orders with respect to its denial, and the Government filed with the Court a motion for reconsideration of its rulings. The Court subsequently vacated its earlier orders and granted in part and denied in part the Government’s motion for reconsideration. The Government has not appealed that ruling. In 2004, the Court approved a revised application regarding this target that incorporated modifications consistent with the Court’s prior order with respect to the motion for reconsideration.

(2) In another case, the Court initially denied the application without prejudice. The Government presented amended orders to the Court later the same day, which the Court approved. Because the Court eventually approved this application, it is included in the 1724 referenced above.

It was in 2003 that the end run around FISA started happening.

And the “United States person” is mitigated by connection to a foreign power. This is REAL identity politics — and we’ll see to where the President’s wartime authority extends.

I’m not sure what you mean by “mitigated.” The statute is quite clear, though apparently the right blogosphere has been passing around a post which misquotes the statute:

FISA is a relatively straightforward statute and the issue here is a simple one. The statute begins with § 1801, which in Section(a) defines various types of “foreign powers” on whom the Government can eavesdrop.

Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government.

Subsections (1)-(3) do not include non-governmental terrorist organizations, such as Al Qaeda. Such groups – i.e., terrorists organizations – are referenced in subsection (4) only.

The next section of FISA — § 1802 — allows warrantless eavesdropping for up to one year (provided other procedures are complied with). But it does so only for “electronic surveillance [that] is solely directed at communications” among foreign powers referred to by subsections (1)-(3) — but not subsection (4). Thus, this authorization to conduct warrantless searches is expressly limited to communications among subsection (1)-(3) foreign governments but does not even arguably extend to subsection (4) terrorist groups.

But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument — namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).

So by the express terms of the statute, the fact that a non-governmental foreign terrorist organization is party to the communication with a US person does not allow the executive to conduct wiretapping without a warrant.
Scott Lemieux December 18, 2005 at 4:45 pm | Permalink

“Scott Lemieux thinks it cute to question my commitment to civil liberties, but to do so he’s forced to beg the question about “warrantless searches,” which under certain circumstances are within the President’s power to authorize.”

Except, of course, not under these cirumstances. The actions Bush has admitted to 1)clearly violate the relevant statute, 2)clearly violate the Fourth Amendment without the exigent cirumstances that would save them, and 3)do all of this despite the existence of a perfectly viable legal framework that uses a low standard for granting warrants. Do you have any argument –without using the phrase “Chimpy McHaliburton” or whatever–about why these warrantless seraches are legal? And, even if you argue that they’re legal under the Yoo “the President’s wartime powers trump all” argument, how on earth they could be consistent with a robust commitment to civil liberties?
mythago December 19, 2005 at 12:29 am | Permalink

I find it amusing that much of the outrage over listening to phone calls of individuals found on Al Qaeda members’ rolodexes after 911 is being proferred by those who would support city-wide smoking bans and the like.

Now there’s a non sequitur you don’t see every day!

What happened to the conservatives whining about jackbooted thugs and the oppressive Feds?
gswift December 19, 2005 at 1:43 am | Permalink

mythago Says:

What happened to the conservatives whining about jackbooted thugs and the oppressive Feds?

Exactly. Let’s all imagine if after Oklahoma City Clinton had started wiretapping high ranking members of the NRA without warrants because they’d found references to them in McVeigh’s rolodex.