Big Brother is Watching You

Heartache in the White House. The Administration’s secret weapon, the National Security Agency, has been dragged out of the closet and exposed to daylight. The White House is in mourning, because the President is being prevented from doing his job. How can we expect Mr. Bush to protect us from The Terrorists if he isn’t free to ignore treaties, international law, and the US Constitution? Only those with something to hide could conceivably object to the US Government reading their mail, tapping their phones, and following them around. The Administration’s position is that the 4th Amendment doesn’t apply to the President, and they are completely free to ignore it. Because we are at war. With The Terrorists.

Here, in its entirety, is the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If you read it carefully you will see that Jefferson and our Founding Fathers did not say that the Fourth Amendment applies to the President. This, evidently, is what the President means by “strict construction,” which he has been so vocal in demanding from the Supreme Court. And of course if you read the rest of the Constitution, you will see that it does not prohibit the President from telling the Supreme Court what to do. A “strict constructionist” will surely see that the President is not mentioned at all in the Bill of Rights. Therefore, ipso facto as the legal types would have it, the Fourth Amendment simply does not apply to the White House. Or, to quote an earlier generation of Republicans’ poster child of integrity, Richard M. Nixon, “…when the president does it that means that it is not illegal.

After all, the President’s first priority is to defend America. It says that right in the Oath of Office– “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” As you can see, “executing the office” takes precedence over the Constitution, and according to the President the office is whatever he says it is.

OK, all kidding aside, that’s a reasonable summary of the Administration’s justification for spying on Americans without a warrant, in direct contravention of the Fourth Amendment. Although it is customary to name the President, it is more accurate to refer to the Administration, because the President signed the order but the order itself has Cheney’s and Rumsfeld’s fingerprints all over it. After all, the National Security Agency reports to the Department of Defense.

nsasealIn other words, the President has ordered the NSA to eavesdrop on the private conversations of an unspecified number of people (estimates range from a few hundred to millions), without obtaining a warrant. The Administration has acknowledged that these targets of surveillance include US citizens and other persons legally in this country, which would be a direct violation of the Fourth Amendment.

A brief history of this issue may be useful for those of you who don’t know it, or who have let the Administration’s spin machine obscure it.

In the 1970s the National Security Agency developed a system called ECHELON to carry out automatic monitoring of electronic communications. The NSA already had the hardware in place, and owned more computer processing power than any other organization in the world (they are the biggest of the few users of supercomputers). They were technically capable of intercepting and recording virtually any electronic communications anywhere in the world. This includes telephone, fax, e-mail, and data communications that are carried on networks, and of radio signals including but certainly not limited to broadcast TV and radio. It has been reported that the NSA arranged for some telecommunications companies to route their network traffic in ways that made it easier for NSA to intercept.

You may now have some idea of the volume of electronic data that is available to the NSA eavesdroppers, and you may wonder how they can possibly deal with it. That’s where the ECHELON system comes into it. ECHELON is a system of graduated monitoring that starts with the giant vacuum cleaner that is the NSA collection system. Intercept operations are carried out by the NSA itself, the Cryptologic Agencies of the US military services, and by or with the cooperation of several foreign governments.

echelon site

All of the intercepted communications are run through some very elaborate computer software that looks for specific words, names, or addresses (e.g. phone numbers), in perhaps a hundred distinct languages. This lowest level of processing is the DICTIONARY program, and it is carried out in stations all over the world, many of them operated by other governments who have intelligence treaties with the US. An ECHELON station in New Zealand, for example, will use several “dictionaries” maintained by the agency that it reports to as well as those of NSA, GCHQ, CSE and DSD (you can look those up for yourself).

When a target pattern is matched, which is to say that enough “flags” are identified in a transmission, a recording of that communication is escalated to the next level of the ECHELON system. The next level is probably a more advanced computer system that is slower but can detect more patterns, and make connections between message “A” which it is working on now, and messages “B,C & D” which were processed in the last month, or year, or decade.. On the other hand, if the message was escalated because it contained the words “bomb” and “disaster” but turned out to be a review of a movie, it can be discarded. If more flags or links are discovered, the intercept is escalated to the next level of analysis, which may actually be performed by a human being. Presumably, in some circumstances enough flags can be registered at the dictionary level to escalate the message straight to a human analyst.

But wait– wouldn’t interception, recording, and analysis of all communications going through a particular network involve the private communication of American citizens? And wouldn’t that automatically be a violation of the 4th Amendment? The answer to both questions is a resounding yes, and that is why Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978. FISA set down procedures for the handling of intercepted communications involving Americans, specifically required a warrant, and created a secret court (the FIS Court, or FISC, which has 11 judges– increased from 7 to 11 by the USAPATRIOT act) to which intelligence agencies could apply for a warrant. An agency requesting a FISA warrant can do so up to 72 hours after surveillance has begun– and that “retrospective” period is extended to 15 days “in time of war.”

The constitutionality of FISA warrants has never been tested in court, and is not likely to be. Nobody has been charged with a crime on the basis of a FISA warrant, and that is not likely to happen either so long as the government can declare suspects to be “enemy combatants” and hold them indefinitely without charges.

The only “oversight” of the FISA court’s activities would seem to be their annual reports to Congress, which indicate that in the first 22 years of its history the court issued 13,102 warrants as requested by the government, and modified exactly two of them. But beginning in 2000 the Court found itself rejecting applications by the Bush administration. Since 2001 there have been 5,645 requests for warrants, and the court modified 179 them (of which 173 were in 2003 and 2004). Also during 2003 and 2004 the court rejected or deferred at least 6 requests for warrants– the first outright refusals to issue warrants in the court’s history. The timing is significant– Bush ordered warantless spying only after he was denied warrants. What was he asking for that the exceptionally friendly FISA court would not give him? Sorry… that’s classified.

What is known, though, is that NSA “product” includes all sorts of intelligence that is unrelated to any military or national security purpose. Suffice it to say that US government officers, negotiating sales of grain to the Soviet Union, knew almost to the bushel what Soviet grain production was going to be– often before the Soviet government had any idea. And it is safe to assume that there is a lot of commercial intelligence “product” that would be of immediate interest to our government contractors, including, um, Haliburton. Hypothetically speaking, if Bush can deliver commercial intelligence to contractors, it must be an awful temptation to throw the odd bone to corporations that have supported him. He might even be tempted to use his assumed “authority” to conduct surveillance operations against his political “enemies.”

At the moment the Whitehouse is asserting the legality of warrantless eavesdropping on two primary grounds– the conversations which are monitored have one leg outside the United States, and the president’s ordering of surveillance is within his “war powers” authority. Both would seem to be highly questionable.

The Fourth Amendment does not include an exception for “papers and effects” involving persons outside the United States. The deliberate attempts to distinguish “domestic” from “international” spying are pointless. Or would they have us believe that a US citizen loses all of his contstitutional rights when he is overseas?

The “war powers” authority rests entirely on Congress’ authorization of the use of force against terrorists and countries that sponsor them. Bush has taken that to mean that a state of war exists, and has manufactured the War on Terror. Again referring to the Constitution, only Congress can declare war, and it has not done so.

But perhaps this will put the whole thing in focus: the NSA does not need a warrant to conduct surveillance of any foreign person or government. The FISA court was established specifically to cover cases where a warrant was required because of the involvement of a US person. The administration’s attempt to say that warrants aren’t necessary because some foreign person is also involved, is clearly out of bounds, violating not only the letter but the spirit of the FISA law and the Constitution. And common sense says that if a warrant is easy to get, can be obtained retroactively, and the details are secret forever, the administration can have no reason for bypassing FISA that is legitimate– again, we wonder why they were having warrants denied, deferred, or modified.


What do you think? Please enter a comment below.

3 Responses to “Big Brother is Watching You”

  1. LL Says:

    I’ve spent the afternoon calling Senators to urge them to support the ScAlito filibuster, or at least not to vote for cloture. This is a last, desperate attempt to prevent the loss of the Constitutional system of checks and balances that have been the strength of our Republic.

  2. joe public Says:

    Can you get in trouble for writing that stuff? Can I get in trouble for reading it?

  3. SG Says:

    Joe asks a very pertinent question, but unfortunately it does not have an easy answer. We would like to say that the answer is no– none of us can get in trouble for exercising our Constitutional rights of free expression and freedom of association.

    But a more accurate, and, sadly more realistic answer would depend on what you consider to be “trouble.”

    The most obvious definition of “trouble” would be “legal trouble” or possible prosecution for our having broken a law. For example, if we “knowingly disclosed” classified information, we could be prosecuted for that. But we didn’t. Everything we said has been published in one form or another and there are links to some of our “sources.” Legally, we (and our readers) should have nothing to worry about.

    Which takes us neatly to the point of the article, because there are other forms of trouble that we certainly have exposed ourselves to.

    We can assume that the article, and comments, have been “read” by the NSA ECHELON system because if a single foreign reader has “viewed” them, then the contents have travelled through international parts of the Internet and have almost certainly been intercepted. And although it has received a lot less attention lately, the FBI operates similar systems (notably the Carnivore system which you might like to look up) in the United States.

    So yes, we are being read, and because we touch on national security issues, the government eavesdroppers could indeed get a warrant from the FISA Court, or isue a National Security Letter and scrutinize us more closely. Or, as we’ve seen, the NSA could begin monitoring our communications without a warrant.

    We really do live in a “surveillance society” and it’s going to get worse before it gets better. Big Brother is watching you, and listening to what you say, and reading what you write. Our government tells us that we have nothing to fear, if we have nothing to hide, so relax.


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