February 3rd, 2006

Brad @ Burning Man

Bush Isn't Lying about the NSA Scandal. Probably, Anyway. Not Quite. That We Can Prove, Anyway.

Sorry it took me so long to get around to saying this. It's not reluctance on my part, it's that every time I've been ready to tackle this subject, something has crawled ahead of it in the priority queue. I did answer some questions about this in other people's journals, but the rest of you really need to hear this too:

Sorry, Keith Olbermann, but this time you actually don't know what you're talking about. The NSA "domestic spying scandal" that he's been beating on the Administration like a drum about for a week and a half now, and that you all have been hearing about, to the extent that we've been told the truth about it (and I'll come back to that in a minute), is being forced by the limitations of our technology, important to the country's safety, older than the actual phone system, and so far as we can tell, 100% legal. Yes, each of those is somewhat fuzzily defined, but the net effect is that what George Bush is saying about the program is technically correct, and that, not the fact that the Republicans control all three branches of government, is why you see so little movement on the subject. (If the Republicans had it in their power to squash a scandal as big as some people think this one is, you'd never have heard of Jack Abramoff.)

Older than the Phone System? I got saved from having to do a crapload of typing by PBS Online columnist Robert X. Cringely (a pseudonym), who wrote the best history of this program that I've seen yet, in his column about two weeks ago entitled "Hitler on Line One." The fact of the matter is that, especially in war time (and how much non-war time have we had?), going all the way back to the first trans-Atlantic telegraph cable, the US has been spying on all communications between the US and countries that we're in some kind of conflict with.

Legal as Church on Sunday? OK, here's the deal. The Fourth Amendment to the US Constitution protects American citizens in their "persons, houses, papers, and effects, against unreasonable searches and seizures." So far as I know, no court decision in this country's history has ever granted any constitutional protection to foreigners overseas. Americans at home, yes. Americans overseas, mostly. Foreigners here, sometimes. Foreigners over there? Nope. So the legal theory that every Presidential administration in more than half a century has depended upon is that as long as it's legal to listen in on one end of the conversation, the rest just comes with it. And that's without even testing the Bush administration's mostly-irrelevant legal theory that the right to spy on foreigners and their agents is an inherent part of any War Powers authorization.

Important to the Country's Safety? Well, here's how this all started. We invaded Afghanistan. Remember that? And one of our lucky successes was that when we invaded Kandahar, the Taliban's home city, we lucked into one of the intelligence finds that spies only dream of: an al Qaeda boss's laptop computer, hard disk intact. Including phone lists. Which gave them a list of al Qaeda agents, both in the US and abroad, to spy upon. So if this were still the 1940s, it would be trivially easy to spy on those people, and I think it should be painfully obvious why we would need to do that. Which brings us to the real heart of the matter, the dangerous and ugly (but probably borderline legal) part:

Technically Necessary? A while back, Bush said that whenever the government performs a wiretap, they get a warrant. This seems, so far as we can tell, to be true. The catch is that we almost never tap wires any more. Why not? Because there seldom are any wires that it would do any good to tap. We're past the days where you could count on an unencrypted, uncompressed analog phone signal traveling along the same line every time. We can't even count on comprehensible radio signals coming out of cell phones. This is especially true since more and more of the country is moving to the (European) GSM cell phone standard, something the NSA and the FBI fought tooth and nail. Why? The encryption's automatic and too good for or spies to crack in any reasonable amount of time. So these aren't wire taps we're talking about here. They're communications intercepts. (And they say that Bill Clinton was good at parsing language.)

Which brings up the ugly part of this, which may or may not be legal, depending on whether they're telling the truth about what they did with it not. You see, especially when it comes to cell phones, the only way for the government to tap them is to log directly into the phone switch and filter out the voice part of the call after it's been decrypted by the switch. Worse, since cell phones move around, you need to be able to do this to every phone switch used by their cellular phone carrier. And if they have multiple phone carriers, you need to tap them all ... at the switch. How do you do that? Well, here's the part that's all of our fault, and yet none of ours, let alone theirs. The law "requires" the phone companies to have upgraded their switches by now to let law enforcement log in remotely, request a tap on a single phone number, and have the switch give it to them. Privacy advocates have been all over this idea like white on rice because if they have their own logon IDs, there'd be no way to tell if they were using them or not. (Or so the privacy advocates say.) The phone companies have been dragging their feet, risking legal sanctions, because it would cost a fortune to implement, and the government isn't offering to pay for it. For both reasons and maybe even more, if the NSA needs to tap the phones of al Qaeda spies on digital cell phones, they only have one way to do it: tap the whole switch. From inside the switch. With the technicians' master passwords. Which gives them unlimited access to every call on the switch. For every switch they do this to. At which point, there is no way at all to prove what they've done with it; they could very easily tap every call that goes through each switch.

What they've said, the few times they've come close to admitting this is that they're not paying any attention to the calls except for the ones between the USA and overseas phone numbers associated with enemy nations or terrorist groups. And if they're telling the truth about that, then history suggests that it was perfectly legal and entirely the kind of thing that the NSA has been doing for a living for longer than any of us have known there was a National Security Agency. And the only catch is that we have to take their word for that. On the other hand, how good was this government at keeping the Iraqi reconstruction corruption scandals secret? Or Abu Grhaib? How good was the Reagan administration at keeping Iran-Contra a secret? All it would take is one disaffected employee to go public, and contrary to what you'd expect, the NSA has had plenty of disaffected whiste-blowers. So yep, I think they're telling the truth this time. Which means that the left, and various other paranoids, really are in the wrong this time.