May 11th, 2006

V for Vendetta

OK, the NSA Thing Really Was Worse than I Thought

A smidgen over 3 months ago I predicted that President Bush would be exonerated over the NSA spying scandal. Let me recap to that point. What those of us who think this stuff is interesting had known for longer than one generation was that there was a government agency, the NSA, which used a variety of clever wiretapping capabilities to listen in on phone calls leaving the US via the few undersea cables that link the US to the rest of the world, to any country that was our enemy, and had been doing so since World War II at the latest (and arguably as far back as the late 1800s, with their predecessors intercepting the first trans-Atlantic telegraph cables). Back in the mid 1970s, Congress freaked out at the thought that any phone in the USA might be listened in on, no matter who was calling or where they were calling to, without a warrant. They didn't so much make it illegal to do so -- by any sane reading of the law, it was already illegal to do so, under the 4th Amendment to the Constitution. But they created a process by which the NSA could legally do so, using their own tame court to approve warrants, even up to 72 hours after the wiretap began.

If you ever seriously thought, for even a minute, that everything the CIA and the NSA do while pursuing foreign spies was legal, I have to also assume that you were still young enough or naive enough to also believe in the Tooth Fairy and the Easter Bunny. Those of us who cared always assumed, without any evidence necessary, that any time they wanted to do so the NSA and the CIA grimly ignored that law just as thoroughly as they ignored the 4th Amendment before that. But the 1970s reforms hammered out the shape of the compromise, which was that if they weren't willing to make a rock-solid case to their own tame, captive judge that this really was probable cause, then by the God and sunny Jesus anybody outside the intelligence community had better never find out about it, including finding out anything that was so discovered.

When US forces rolled into Kandahar in retaliation for the Afghan government's backing of Osama bin Laden in his private war against us, we lucked into one of those intelligence finds of the centuries: an intact hard disk from an al Qaeda office computer. This included years' worth of inter-office memos, but even better than that, it included their phone list. Now, here's a fact widely known in the telecommunications industry but little known outside of it. Phone companies keep anywhere from 2 months' worth to 2 years' worth of your billing statements on file, for their own fraud control purposes. So if the CIA and the NSA had a list of phone numbers that previously belonged to al Qaeda big-wigs, it would have been the work of at most a day or two for programmers inside each of the long-distance carriers to write a query that would search those old billing statements and give them a list of everybody who had called those numbers. I think you'd have to be crazy to think that they didn't do that. That gives them a list of US suspects with known close associations with al Qaeda, so I guarantee you that whenever those people called overseas, they were eavesdropped on ... and thereafter, so were the people they called. Why do you think so many Islamic charities ended up being investigated? They had business relationships with some of the same overseas individuals and groups that were also funding al Qaeda, whether they knew this or not.

And legal or illegal, I knew that no court was going to do anything about it. And sure as heck, when the ACLU filed suit over this, I started watching procedural hurdles going up over and over again, with very little complaint from either party. Why? Because truth be told, this really is what the NSA is supposed to do, and pretty much all the grownups know it. Ah, but why trust them with this extra-judicial authority? Why was I so confident that it would never be abused, and that it had gone no further than it has always gone for the last 60 years without a single documented abuse? Because I knew that there was no way that they could go any further than that without a whole lot of technicians and managers inside those phone companies knowing about it. And techies gossip. If they went any further than that, or abused what they had for political purposes, then certainly within at most a year or two we'd all know about it, for the same reason that five people in John Poindexter's office couldn't keep Iran/Contra a secret, for the same reason that the 9 or 10 "plumbers" in the Nixon White House couldn't keep Watergate a secret, for the same reason that all of the various bribery scandals are going down right now. Because, as the old mafia saying goes, three people can keep a secret ... if two of them are dead. Spies like to inflate their importance, but none of the world's spy agencies has ever found out anything that reporters hadn't put into print months or years before them. A spy is just an investigative journalist with a lower budget, fewer incentives, and more bureaucratic meddling in his job.

I appear to have been optimistic. Not about their inability to keep secrets, not about the fact that sooner or later everybody talks, but about how fast. Because, as by now you've surely heard, USA Today had very little trouble finding techies inside the phone companies who were eager to talk, as long as they could do it as gossip, as off-the-record. So now we know, just as I said we would know, if they went over the top and completely out of bounds. And they're going to have a very hard time wiggling out of this one, because this is much, much bigger. And even if they play the "trust us" card, even if they challenge us to find one example of them abusing the massive stockpile of data they collected on ordinary Americans, the fact of the matter is that that database is an insanely dangerous thing to exist, unless everybody has access to it. Because it would be trivially easy to cross-reference that database with other, public databases like reverse directory lookups and do all kinds of surveillance on your political enemies with it. And even if the Bush Administration hasn't succumbed to that temptation, given their history of retaliating against critics every chance they've had, who wants to bet that they won't? And if they don't, who has any confidence that some future administration won't?

No, I was wrong. Which means that George W. Bush is in huge trouble now, bigger trouble than he's ever known.