Commentary Magazine


Topic: National Security Agency

Does Rand’s GOP Think NSA is the Enemy?

In a week in which Americans were reminded that Sarah Palin and Mitt Romney were right and President Obama was wrong about Russia being the primary geo-strategic threat to their country, Senator Rand Paul brought a different perspective on the world to the CPAC conference today. Coming as it did after days of speeches from other conservatives that centered on Obama’s weakness in the face of international terror and Russian aggression as well as concerns about social issues and economic and the need to address the concerns of working people and the poor, Paul changed the subject. In his speech, the Kentucky senator centered on one subject: the threat to civil liberties from an intrusive government. In Rand Paul’s world al-Qaeda and Vladimir Putin are mere annoyances; the real foe is the National Security Agency and its metadata mining.

There are two conclusions can be drawn from this speech that was cheered to the echo by the audience at CPAC. One is that if CPAC activists are a representative sample of the grass roots of the Republican Party (a debatable but not outlandish assumption), there’s little question that Paul has a leg up on the 2016 presidential race. The other is that if those cheers mean that if it’s Rand’s GOP then it is a party with little chance to win in two years no matter what happens in November 2014. As much as Paul’s soaring rhetoric about liberty resonates with the party’s base — and indeed with most Republicans — his obsessive antagonism to national security issues and disinterest in a strong American foreign policy is likely to help doom the GOP to permanent minority status.

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In a week in which Americans were reminded that Sarah Palin and Mitt Romney were right and President Obama was wrong about Russia being the primary geo-strategic threat to their country, Senator Rand Paul brought a different perspective on the world to the CPAC conference today. Coming as it did after days of speeches from other conservatives that centered on Obama’s weakness in the face of international terror and Russian aggression as well as concerns about social issues and economic and the need to address the concerns of working people and the poor, Paul changed the subject. In his speech, the Kentucky senator centered on one subject: the threat to civil liberties from an intrusive government. In Rand Paul’s world al-Qaeda and Vladimir Putin are mere annoyances; the real foe is the National Security Agency and its metadata mining.

There are two conclusions can be drawn from this speech that was cheered to the echo by the audience at CPAC. One is that if CPAC activists are a representative sample of the grass roots of the Republican Party (a debatable but not outlandish assumption), there’s little question that Paul has a leg up on the 2016 presidential race. The other is that if those cheers mean that if it’s Rand’s GOP then it is a party with little chance to win in two years no matter what happens in November 2014. As much as Paul’s soaring rhetoric about liberty resonates with the party’s base — and indeed with most Republicans — his obsessive antagonism to national security issues and disinterest in a strong American foreign policy is likely to help doom the GOP to permanent minority status.

It should be conceded that Paul’s absolutist view of the Fourth Amendment is popular with a lot of Americans who rightly worry about an intrusive big government. That cynicism about the all-powerful state is exacerbated by President Obama’s unconstitutional power grabs on health care, selective enforcement of laws, an out-of-control IRS and spying on the press. His views also resonate with conservatives who like his rhetoric about the party being true to its principles rather than moderating itself in what seems like a vain quest for mainstream approval.

The defense of freedom must always be America’s priority. But what he seems to forget is that the primary element of that defense are not lawsuits against the National Security Agency or paranoia about drone attacks on law-abiding Americans sitting in Starbucks. It requires a strong national defense rather than one gutted by Obama’s cuts that Paul doesn’t seem very upset about. And it also must be based on a robust foreign policy rooted in an understanding that international threats can’t be ignored or wished away by isolationist rhetoric.

The problem with Rand’s vision of the GOP isn’t that Americans think foreign policy is their top concern. That isn’t true even in a week in which foreign news is leading the headlines thanking to Putin’s aggression in the Ukraine. But most Americans know that, for all of their cynicism about government, treating the NSA as the boogeyman is no substitute for an approach for dealing with the world. If Republicans head into the fall of 2016 with Paul as their champion against Hillary Clinton, it will be the author of the comical “reset” with Russia and the person who asked “does it really matter?” about Benghazi that will be seen as the one with the credentials on foreign policy, not the nominee of the party of Ronald Reagan.

Paul’s extreme libertarianism and anti-war approach does offer the GOP a chance to win some votes on the left that will see his foreign policy as indistinguishable from that of liberal Democrats. But it will also concede the vast center of American politics to the Democrats while doing little to bridge the gap with women and minority voters that doomed Mitt Romney in 2012. Conservatives are right to think the GOP must be true to its principles in order to win. Rand’s base has also expanded from the extremists he inherited from his father. But Paul’s foreign policy is not consistent with the traditional Republican attitude toward national defense and it will lose the party votes it can’t make up elsewhere.

A year after his drone filibuster that made him a star, Paul is still basking in the applause from a conservative following that has come to view all government programs — not just the welfare state but national defense too — as the enemy. As other potential front-runners have faltered there is no denying that he is ahead of most of his would-be 2016 competitors. But today’s speech is a reminder to Republicans that a commitment to his agenda could leave them looking foolish when events and the will of the voters obligate them to put forward a view of the world that takes into account America’s real enemies as well as the imperative to fund a viable national defense.

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A Mindboggling NSA/CIA Blunder

Officials at the National Security Agency are lobbing a familiar critique at the Obama administration. Once the extent of the NSA’s sweeping surveillance was revealed and the organization became controversial, the president has declined to fully engage the public-relations battle on the NSA’s behalf. The Obama administration has a tendency to employ controversial security agencies and actions without staunchly defending their legitimacy, which is often interpreted as ambivalence.

As Shane Harris notes, officials in the security establishment see it as more than just a pride issue: “If left unchecked, it could start to erode the trusted relationships that have been at the heart of how the U.S. government handles global threats since 9/11.” But if President Obama feels the need to respond to the NSA’s most recent complaints, he should tell them the following: Help me help you.

A couple of recent news stories highlight just how difficult the NSA has made the job of defending it in the public sphere. The most recent, but also the most damaging to the NSA’s credibility, is today’s New York Times report:

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Officials at the National Security Agency are lobbing a familiar critique at the Obama administration. Once the extent of the NSA’s sweeping surveillance was revealed and the organization became controversial, the president has declined to fully engage the public-relations battle on the NSA’s behalf. The Obama administration has a tendency to employ controversial security agencies and actions without staunchly defending their legitimacy, which is often interpreted as ambivalence.

As Shane Harris notes, officials in the security establishment see it as more than just a pride issue: “If left unchecked, it could start to erode the trusted relationships that have been at the heart of how the U.S. government handles global threats since 9/11.” But if President Obama feels the need to respond to the NSA’s most recent complaints, he should tell them the following: Help me help you.

A couple of recent news stories highlight just how difficult the NSA has made the job of defending it in the public sphere. The most recent, but also the most damaging to the NSA’s credibility, is today’s New York Times report:

Just as Edward J. Snowden was preparing to leave Geneva and a job as a C.I.A. technician in 2009, his supervisor wrote a derogatory report in his personnel file, noting a distinct change in the young man’s behavior and work habits, as well as a troubling suspicion.

The C.I.A. suspected that Mr. Snowden was trying to break into classified computer files to which he was not authorized to have access, and decided to send him home, according to two senior American officials.

But the red flags went unheeded. Mr. Snowden left the C.I.A. to become a contractor for the National Security Agency, and four years later he leaked thousands of classified documents. The supervisor’s cautionary note and the C.I.A.’s suspicions apparently were not forwarded to the N.S.A. or its contractors, and surfaced only after federal investigators began scrutinizing Mr. Snowden’s record once the documents began spilling out, intelligence and law enforcement officials said.

“It slipped through the cracks,” one veteran law enforcement official said of the report.

Ahem. It slipped through the cracks? The CIA sent Snowden home because he was trying to hack into classified intelligence files and he was then hired by the National Security Agency and given clearance. The Times then adds this paraphrased admission from its sources, which deserves some kind of award for understatement: “In hindsight, officials said, the report by the C.I.A. supervisor and the agency’s suspicions might have been the first serious warnings of the disclosures to come, and the biggest missed opportunity to review Mr. Snowden’s top-secret clearance or at least put his future work at the N.S.A. under much greater scrutiny.”

Yes, the CIA employee trying to hack into classified intel files should not have been hired by the NSA and given top-secret clearance. That is, surely, one lesson no one should have needed to learn by trial and error.

Now, it looks like this colossal blunder was a team effort. The CIA should have made sure someone saw this at the NSA, if in fact this report was not forwarded to the agency. But it also calls into question the seriousness with which the NSA handles hiring, contracting, background checks, and the like. If the hiring system at the NSA is not designed to prevent people like Edward Snowden from attaining top-secret clearance, then the system needs some reform.

And this goes to the question of credibility, which is so crucial to what the NSA does. When the ObamaCare website went live this week and it turned out to have been an utter failure of design and security, as well as a waste of money, people asked a reasonable question: can this administration be trusted with the power it so consistently demands?

Because of the nature of the NSA’s mission, Americans are absolutely entitled (in fact, they should be encouraged) to ask that question of the NSA: can this super-secret spy organization be trusted with the information to which it has access? Part of that trust is earned by convincing the public that the NSA won’t misuse or abuse its powers. But an equally important part is being able to state with confidence that the wrong people–people who are inclined to abuse that power–won’t have access. That is, it’s not just about the NSA’s institutional policy. It’s also about its basic competence and personnel oversight.

The NSA’s desire for the president to show his support for the hard-working and mostly anonymous intelligence officials is legitimate–not just as a matter of principle (the president benefits politically from the NSA’s successes) but also as a matter of practicality, since the erosion of popular support for the NSA could mean the erosion of congressional support, which could endanger the NSA’s funding. But complaints such as this from the NSA’s former general counsel strike me as unfair:

“The President is uncomfortable defending this. Maybe he spends too much time reading blogs on the left,” Baker said.

Or maybe he reads the newspapers. The Snowden affair was a major headache for the president, and also something of an embarrassment. But it was not a scandal of the president’s own making. Instead, it seems to have been a result of malicious intent on Snowden’s part and staggering incompetence on the part of the CIA and NSA. If the NSA wants the president to use his pulpit to defend the broad powers of the NSA, they’re going to have to give him more that’s worth defending.

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The Ambivalent Commander in Chief

On Friday, President Obama conducted a rare press conference at the White House. The leading topic of the day was his effort to defend the government’s efforts to defend the country from terrorism. With the closing of numerous embassies and consulates last week, due to terrorist threats as well as the controversy driven by the leaking of National Security Agency procedures by Edward Snowden, the president had an opportunity to make a full-throated appeal to Americans to reject the efforts of isolationists to dismantle our intelligence efforts and to put away the paranoid suspicions that they have helped fuel.

But while it was good to see the president making any case for the NSA’s necessary monitoring programs, however belated, it was unfortunate that the tone of his remarks was so ambivalent and lacking in the passion he showed when he bragged (once again) about his personal role in killing Osama bin Laden in response to a question about Benghazi, attacked Republicans for their opposition to ObamaCare, or skewered Russian President Vladimir Putin as having the posture of a “bored kid sitting in the back of a classroom.”

Though he agreed, after prompting from NBC’s Chuck Todd, that Snowden was no patriot, his decision to try to appease critics of the NSA via the creation of new review boards, a transparency website, or to amend the Patriot Act betrayed a lack of confidence in the rectitude of his administration’s actions. Indeed, the president’s attempt to dance around the core issues at stake here and to play both ends against the middle—as if he were both the commander in chief and the left-wing community activist opposing the government—undermined his purpose. Suffice it to say that when he said he, too, would be upset about the NSA’s actions, “if I wasn’t inside the government,”—which is to say that the only thing that validates the measures is the magic of his own personality—that wasn’t the strongest argument to be made for a vital national security program.

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On Friday, President Obama conducted a rare press conference at the White House. The leading topic of the day was his effort to defend the government’s efforts to defend the country from terrorism. With the closing of numerous embassies and consulates last week, due to terrorist threats as well as the controversy driven by the leaking of National Security Agency procedures by Edward Snowden, the president had an opportunity to make a full-throated appeal to Americans to reject the efforts of isolationists to dismantle our intelligence efforts and to put away the paranoid suspicions that they have helped fuel.

But while it was good to see the president making any case for the NSA’s necessary monitoring programs, however belated, it was unfortunate that the tone of his remarks was so ambivalent and lacking in the passion he showed when he bragged (once again) about his personal role in killing Osama bin Laden in response to a question about Benghazi, attacked Republicans for their opposition to ObamaCare, or skewered Russian President Vladimir Putin as having the posture of a “bored kid sitting in the back of a classroom.”

Though he agreed, after prompting from NBC’s Chuck Todd, that Snowden was no patriot, his decision to try to appease critics of the NSA via the creation of new review boards, a transparency website, or to amend the Patriot Act betrayed a lack of confidence in the rectitude of his administration’s actions. Indeed, the president’s attempt to dance around the core issues at stake here and to play both ends against the middle—as if he were both the commander in chief and the left-wing community activist opposing the government—undermined his purpose. Suffice it to say that when he said he, too, would be upset about the NSA’s actions, “if I wasn’t inside the government,”—which is to say that the only thing that validates the measures is the magic of his own personality—that wasn’t the strongest argument to be made for a vital national security program.

While any government program deserves scrutiny from Congress and the courts, the president could have done the country some service by not sounding so defensive about NSA activities that have already been subjected to that treatment. Given that he spoke during a week when the terrorist threat had been heightened and NSA intercepts were vital elements in the effort to prevent al-Qaeda affiliates from committing new atrocities, the time was ripe for the commander in chief to remind the country that those who would turn the page back to a September 10th mentality are playing right into the hands of America’s enemies.

The problem is that the president bears a great deal of the responsibility for the fact that polls show that large numbers of Americans are more afraid of government snooping than they are of the al-Qaeda. Obama spent most of 2012 claiming that al-Qaeda was as dead as bin Laden, so why shouldn’t the public that reelected him believe that the war against Islamist terrorism was over too? Of course, the president knows that his reelection campaign’s claims on this issue were largely fraudulent, so he must now tap dance between upholding the government’s ability to defend the public while also maintaining his stance as a critic of the war on terror. If Americans aren’t buying it, it’s not because the threat isn’t real or the NSA programs aren’t necessary, but because they’ve been sold a bill of goods by the man in the White House.

True leadership on national security issues requires more than electioneering slogans, especially when it turns out that, contrary to his assertions last year, Detroit is dead and al-Qaeda is very much alive. I’ve no problem with the president beating his chest a bit about killing terrorists, though it would be in better taste if he didn’t continually refer to the killing of bin Laden in the first person—“I didn’t get him in 11 months”—rather than give credit to the Navy SEALs. But what we need during this phase of the war against Islamism is for Obama to stop sounding ambivalent about doing his duty when it comes to the everyday work of monitoring our enemies. So long as he keeps trying to have it both ways, support for these measures won’t follow.

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“Top Secret” Should Mean Just That

TOP SECRET//SI//NO FORN

That’s the heading on the first page of the court order obtained the Guardian. Top Secret is one of the highest levels of security classification in the U.S. government; the other initials indicate that this is “special intelligence,” aka “signals intelligence,” one of the most closely guarded capabilities of the U.S. intelligence community, and that it should not shown to any foreigners. Ironically and disturbingly, a British newspaper obtained this document.

Now it seems to be open season on the secret intelligence-gathering programs of the U.S. government. Following the Guardian’s exposure of this data-mining program that collects phone logs, the Washington Post has decided to reveal the existence of a program code-named PRISM which allows the National Security Agency  to tap “into the central servers of nine leading U.S. U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.”

These disclosures raise obvious privacy concerns that deserve to be further explored by Congress behind closed doors. But there is no suggestion on the evidence so far presented that either program is illegal or unauthorized or that it has been misused for nefarious purposes. Quite the opposite: Mike Rogers, chairman of the House Intelligence Committee, says that the data-mining program has been used to avert at least one terrorist attack.

So why are we reading about these programs? They are, after all, highly classified—and for good reason: We don’t want terrorists to know what capabilities our intelligence agencies have to track their plots.

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TOP SECRET//SI//NO FORN

That’s the heading on the first page of the court order obtained the Guardian. Top Secret is one of the highest levels of security classification in the U.S. government; the other initials indicate that this is “special intelligence,” aka “signals intelligence,” one of the most closely guarded capabilities of the U.S. intelligence community, and that it should not shown to any foreigners. Ironically and disturbingly, a British newspaper obtained this document.

Now it seems to be open season on the secret intelligence-gathering programs of the U.S. government. Following the Guardian’s exposure of this data-mining program that collects phone logs, the Washington Post has decided to reveal the existence of a program code-named PRISM which allows the National Security Agency  to tap “into the central servers of nine leading U.S. U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.”

These disclosures raise obvious privacy concerns that deserve to be further explored by Congress behind closed doors. But there is no suggestion on the evidence so far presented that either program is illegal or unauthorized or that it has been misused for nefarious purposes. Quite the opposite: Mike Rogers, chairman of the House Intelligence Committee, says that the data-mining program has been used to avert at least one terrorist attack.

So why are we reading about these programs? They are, after all, highly classified—and for good reason: We don’t want terrorists to know what capabilities our intelligence agencies have to track their plots.

Here is the Washington Post’s explanation of how it got the story:

Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. “They quite literally can watch your ideas form as you type,” the officer said.

I have no idea who this intelligence officer is, but he (or she) has committed a serious crime by the unauthorized disclosure of such sensitive information. He needs to be ferreted out and prosecuted. Perhaps if he had actual knowledge of the PRISM program being misused such a breach of confidentiality might be morally, if not legally, justifiable–although even then his first step should be to contact his superiors or others in the government, not to talk to the Washington Post. But there is no suggestion of such misuse here. Instead this appears to be another legal and authorized program that has been implemented by our elected leaders to protect us against terrorists. Government officials stress that only “non-U.S. persons” who are abroad are subject to PRISM monitoring and that the entire program was authorized by the 2007 Protect America Act.

President Obama deserves to be commended for continuing these programs, building on work done in the Bush administration, rather than being attacked as the second coming of Big Brother. The Post and Guardian, for their part, are being irresponsible by printing these disclosures that are more highly classified than the cables that Bradley Manning released–a crime for which he is now being tried. Instead of expressing outrage at these actions to fight terrorism, as so many on both the left and right are now doing, it would be nice if someone got a little outraged at this breach of the secrecy needed for effective intelligence-gathering.

It seems like only yesterday that the chattering classes were castigating the FBI, CIA and other agencies for not doing a better job of monitoring the Tsarnaev brothers before they carried out the Boston bombing. Similar outrage is being directed at the British security services in the wake of their failure to prevent the murder of a British soldier by two Anglo-Nigerian jihadists. Obviously “sigint” collection tools such as PRISM are not a foolproof defense against such attacks especially when undertaken by loners unaffiliated with a known terrorist organization. But they are an important, indeed vital, tool to prevent major attacks on a 9/11 scale, which require far more planning and organization. Exposing these collection tools makes it harder for them to be effective; shutting them down would amount to unilateral disarmament in the face of a continuing terrorist assault.

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Flotsam and Jetsam

Is the NSA helping Google fix its cyberhole? “After Chinese hackers tore Google a new cyberhole in December, the tech titan reportedly looked to an unlikely source for help: the ultra-secretive National Security Agency, better known for tapping phones than patching security holes for private companies. The connection has raised the antennae of Internet privacy experts, who now are warning of the possible risks posed by the close and as-yet undefined ties between the world’s top cybersurveillance agency and a corporate behemoth that has amassed more sensitive data about its users than most personal diaries.” If this were the Bush administration, the ACLU would be going nuts, not just writing letters to Google’s CEO.

Democrats are waking up to just how economically destructive the Obami’s gambit on CO2 is: “Eight Democratic Senators from coal states are mounting a serious challenge to the Environmental Protection Agency’s landmark ruling that CO2 is a pollutant and demanding a delay in enforcing anti-global warming regulations against polluters.” Hey, they could introduce a bill, get lots of GOP support, and put an end to this.

Independents in Iowa are waking up, too: “A sharp drop in approval for President Barack Obama from Iowa’s political independents has pushed the Democrat’s approval further below 50 percent in the state and below the national average, according to the latest Iowa Poll. Approval among Iowa independents has dropped 10 percentage points since November, to 38 percent. Independents in Iowa helped Obama win the leadoff nominating caucuses in 2008 and later carry the state in the general election.”

In other words, the Left is deluded: “With Obama’s top agenda item, health care legislation, near ruins and congressional Democrats on the defensive heading into this year’s midterm elections, much of the sweeping liberal agenda some of Obama’s supporters hoped for and his enemies feared has been deferred. … And yet in a surreal twilight, issues live on, fed by a kind of mutual dependency between the liberal interest groups that exist to advance them and the conservatives for whom opposing them is a potent rallying force. There is, say liberal leaders who suffered through the drought of the Bush years, no point in giving up.”

When Republican candidates in state Senate races run against Nancy Pelosi, it’s not a good sign for the Democrats: “[Jim] Higdon, a Republican from Kentucky, won a state Senate seat in December in a largely Democratic district with an unlikely strategy: He nationalized his race, warning of one-party rule by featuring Democratic House Speaker Nancy Pelosi’s pictures in his television advertisements and campaign literature. Higdon, who was outspent by a 4-to-1 ratio, is glad she’s so unpopular. … Expect the GOP to replicate the strategy in political races around the country this year.”

Bill Bennett explains what was wrong with Glenn Beck’s CPAC speech. A sample: “The first task of a serious political analyst is to see things as they are. There is a difference between morning and night. There is a difference between drunk and sober. And there is a difference between the Republican and Democratic parties. To ignore these differences, or propagate the myth that they don’t exist, is not only discouraging, it is dangerous.” Worth reading in full.

Whatever Obama is doing doesn’t seem to be working: “The Rasmussen Reports daily Presidential Tracking Poll for Sunday shows that 22% of the nation’s voters Strongly Approve of the way that Barack Obama is performing his role as President. That is the lowest level of strong approval yet recorded for this President. Forty-one percent (41%) Strongly Disapprove giving Obama a Presidential Approval Index rating of -19. The Approval Index has been lower only on one day during Barack Obama’s thirteen months in office.”

Sen. Ben Nelson declares, “I don’t know if there’s a happy ending for health care.” Two-thirds of the country would be happy, but Nelson and the voters (especially in his state) don’t see eye-to-eye on health-care reform. It may well be that Nelson blew up his career for nothing.

Is the NSA helping Google fix its cyberhole? “After Chinese hackers tore Google a new cyberhole in December, the tech titan reportedly looked to an unlikely source for help: the ultra-secretive National Security Agency, better known for tapping phones than patching security holes for private companies. The connection has raised the antennae of Internet privacy experts, who now are warning of the possible risks posed by the close and as-yet undefined ties between the world’s top cybersurveillance agency and a corporate behemoth that has amassed more sensitive data about its users than most personal diaries.” If this were the Bush administration, the ACLU would be going nuts, not just writing letters to Google’s CEO.

Democrats are waking up to just how economically destructive the Obami’s gambit on CO2 is: “Eight Democratic Senators from coal states are mounting a serious challenge to the Environmental Protection Agency’s landmark ruling that CO2 is a pollutant and demanding a delay in enforcing anti-global warming regulations against polluters.” Hey, they could introduce a bill, get lots of GOP support, and put an end to this.

Independents in Iowa are waking up, too: “A sharp drop in approval for President Barack Obama from Iowa’s political independents has pushed the Democrat’s approval further below 50 percent in the state and below the national average, according to the latest Iowa Poll. Approval among Iowa independents has dropped 10 percentage points since November, to 38 percent. Independents in Iowa helped Obama win the leadoff nominating caucuses in 2008 and later carry the state in the general election.”

In other words, the Left is deluded: “With Obama’s top agenda item, health care legislation, near ruins and congressional Democrats on the defensive heading into this year’s midterm elections, much of the sweeping liberal agenda some of Obama’s supporters hoped for and his enemies feared has been deferred. … And yet in a surreal twilight, issues live on, fed by a kind of mutual dependency between the liberal interest groups that exist to advance them and the conservatives for whom opposing them is a potent rallying force. There is, say liberal leaders who suffered through the drought of the Bush years, no point in giving up.”

When Republican candidates in state Senate races run against Nancy Pelosi, it’s not a good sign for the Democrats: “[Jim] Higdon, a Republican from Kentucky, won a state Senate seat in December in a largely Democratic district with an unlikely strategy: He nationalized his race, warning of one-party rule by featuring Democratic House Speaker Nancy Pelosi’s pictures in his television advertisements and campaign literature. Higdon, who was outspent by a 4-to-1 ratio, is glad she’s so unpopular. … Expect the GOP to replicate the strategy in political races around the country this year.”

Bill Bennett explains what was wrong with Glenn Beck’s CPAC speech. A sample: “The first task of a serious political analyst is to see things as they are. There is a difference between morning and night. There is a difference between drunk and sober. And there is a difference between the Republican and Democratic parties. To ignore these differences, or propagate the myth that they don’t exist, is not only discouraging, it is dangerous.” Worth reading in full.

Whatever Obama is doing doesn’t seem to be working: “The Rasmussen Reports daily Presidential Tracking Poll for Sunday shows that 22% of the nation’s voters Strongly Approve of the way that Barack Obama is performing his role as President. That is the lowest level of strong approval yet recorded for this President. Forty-one percent (41%) Strongly Disapprove giving Obama a Presidential Approval Index rating of -19. The Approval Index has been lower only on one day during Barack Obama’s thirteen months in office.”

Sen. Ben Nelson declares, “I don’t know if there’s a happy ending for health care.” Two-thirds of the country would be happy, but Nelson and the voters (especially in his state) don’t see eye-to-eye on health-care reform. It may well be that Nelson blew up his career for nothing.

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Michael Hayden vs. Obami’s Folly

Former CIA Director Michael Hayden is the latest and among the most credible critics of the administration’s handling of the Christmas Day bombing. He writes:

We got it wrong in Detroit on Christmas Day. We allowed an enemy combatant the protections of our Constitution before we had adequately interrogated him. Umar Farouk Abdulmutallab is not “an isolated extremist.” He is the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland.

In the 50 minutes the FBI had to question him, agents reportedly got actionable intelligence. Good. But were there any experts on al-Qaeda in the Arabian Peninsula in the room (other than Abdulmutallab)? Was there anyone intimately familiar with any National Security Agency raw traffic to, from or about the captured terrorist? Did they have a list or photos of suspected recruits?

This is, as Hayden points out, one in a long list of misjudgments that began when we limited our interrogations to the Army Field Manual, stripped the CIA of its interrogation responsibilities (and then failed to implement the high-value detainee interrogation team), released the interrogation memos, began the re-investigation of CIA operatives, decided to try KSM, and, of course, determined to close Guantanamo without a reasonable alternative. Our anti-terror policies now have an entirely legalistic cast, and our intelligence-gathering has been subsumed to a new priority: the extension of constitutional protections to terrorists. As Hadyen dryly concludes:

In August, the government unveiled the [ High Value Interrogation Group] for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.

Aside from the political controversy this has created and the lack of confidence it has inspired among the American people, the question remains whether we are now safer, and our intelligence agencies, more focused. Almost certainly, we are neither. This has been a grand experiment — allowing leftist lawyers to run our national-security policy. Perhaps after a year, we can now see how foolhardy the endeavor was. If the president cannot pivot (just as on domestic policy), it is time for Congress to step forward, use the power of the purse, and exercise its authority over the federal courts’ jurisdiction. Members of Congress, too, have an obligation to attend to the national security of the country. They would be well advised to review, assess, and then depart from the Obami’s ill-fated escapade.

Former CIA Director Michael Hayden is the latest and among the most credible critics of the administration’s handling of the Christmas Day bombing. He writes:

We got it wrong in Detroit on Christmas Day. We allowed an enemy combatant the protections of our Constitution before we had adequately interrogated him. Umar Farouk Abdulmutallab is not “an isolated extremist.” He is the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland.

In the 50 minutes the FBI had to question him, agents reportedly got actionable intelligence. Good. But were there any experts on al-Qaeda in the Arabian Peninsula in the room (other than Abdulmutallab)? Was there anyone intimately familiar with any National Security Agency raw traffic to, from or about the captured terrorist? Did they have a list or photos of suspected recruits?

This is, as Hayden points out, one in a long list of misjudgments that began when we limited our interrogations to the Army Field Manual, stripped the CIA of its interrogation responsibilities (and then failed to implement the high-value detainee interrogation team), released the interrogation memos, began the re-investigation of CIA operatives, decided to try KSM, and, of course, determined to close Guantanamo without a reasonable alternative. Our anti-terror policies now have an entirely legalistic cast, and our intelligence-gathering has been subsumed to a new priority: the extension of constitutional protections to terrorists. As Hadyen dryly concludes:

In August, the government unveiled the [ High Value Interrogation Group] for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.

Aside from the political controversy this has created and the lack of confidence it has inspired among the American people, the question remains whether we are now safer, and our intelligence agencies, more focused. Almost certainly, we are neither. This has been a grand experiment — allowing leftist lawyers to run our national-security policy. Perhaps after a year, we can now see how foolhardy the endeavor was. If the president cannot pivot (just as on domestic policy), it is time for Congress to step forward, use the power of the purse, and exercise its authority over the federal courts’ jurisdiction. Members of Congress, too, have an obligation to attend to the national security of the country. They would be well advised to review, assess, and then depart from the Obami’s ill-fated escapade.

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Is Obama Really Shaken?

David Broder, like many pundits more conservative in outlook who have hoped for an Obama “Ah ha!” moment, seems to think that Obama will have an epiphany in the wake of the Christmas Day bombing plot. He contends:

The near-miss by a passenger plotting to blow up an American airliner as it flew into Detroit seems to have shocked this president as much as the attacks on the World Trade Center and the Pentagon did the last.

Really? It’s hard to discern. Obama has not ordered a review and reconsideration of his fundamental policy decisions. He has not declared that classifying terrorists as criminal defendants may require a second look. He’s still bent on closing Guantanamo. Eric Holder and the lefty lawyers still reign supreme at the Justice Department, and KSM is headed for trial. And so far, not a single Obama official has been fired for what the president concedes was an abominable screwup. We have no new declaration of U.S. policy. How shocked could he be?

Broder divines that the “Christmas plot appears to have shaken Obama like nothing else that happened in his first year.” But how can we tell? This seems, frankly, to be a bit of wishful thinking, just as observers listening to the Nobel Peace Prize speech saw glimmers of a tougher Iran policy or a more robust assertion of American exceptionalism. Certainly we’ve come a long way since the Hawaii performance, when the president proclaimed the Christmas Day bombing plot the work of an “isolated extremist,” but the reaction has been a flurry of incremental, bureaucratic adjustments. Former 9/11 commission member John Lehman let it rip, deriding the Obama response:

President Obama just doesn’t get it. … I don’t think he has a clue. It’s all pure spin. He’s ignoring key issues and taking respectable professionals like John Brennan and turning them into hacks and shills. It’s beyond contempt. The president has ignored the 9/11 Commission’s report. … This whole idea that we can fix things by jumping higher and faster is ridiculous. The fact is that the system worked just like we said it would work if the president failed to give the Director of National Intelligence the tools he needs: it’s bloated, bureaucratic, layered, and stultified.

President Obama continues to totally ignore one of the important thrusts of our 9/11 recommendations, which is that you have to approach counterterrorism as a multiagency intelligence issue, and not as a law-enforcement issue.

Obama and his political gurus have figured out that the president’s national-security stance — downplaying the war against Islamic fundamentalists, hyper-legalistic rhetoric, a refusal to recognize jihadist attacks as part of a concerted war on the West, etc. — is a political loser. The public, Congress, and the media recoiled in horror when they saw the president’s ho-hum reaction to an attempt to incinerate nearly 300 people. But understanding the political peril does not signify a commitment to rethink policy assumptions. That would require a fundamental reorientation away from the “not Bush” policies, including the decision to classify terrorists captured in the U.S. as criminal defendants and to try them in civilian courts. Even the Washington Post editors sense that the response is somehow not commensurate with the gravity of the intelligence failure:

Mr. Obama’s solutions have the air of the small bore: a “training course” for the National Security Agency; a “dedicated capability responsible for enhancing record information on possible terrorists … for watchlisting purposes.” Perhaps a series of individual tweaks will do the job. But the administration report suggests that the problem is less tractable than Mr. Obama has acknowledged. His depiction Thursday of the shortcomings was admirably honest and more frightening than previously portrayed. His proposed fixes did not entirely reassure.

The fixes do not reassure because they do not begin to address the most basic errors of the Obama administration and its odd predilection, made odder by mismatched rhetoric, to see the war against Islamic fundamentalists as peripheral to its agenda. We will know that Obama has really been “shaken” when the war on Islamic terrorists is identified as such, when that becomes the core mission of the administration and when the president’s policies and not just his rhetoric changes.

David Broder, like many pundits more conservative in outlook who have hoped for an Obama “Ah ha!” moment, seems to think that Obama will have an epiphany in the wake of the Christmas Day bombing plot. He contends:

The near-miss by a passenger plotting to blow up an American airliner as it flew into Detroit seems to have shocked this president as much as the attacks on the World Trade Center and the Pentagon did the last.

Really? It’s hard to discern. Obama has not ordered a review and reconsideration of his fundamental policy decisions. He has not declared that classifying terrorists as criminal defendants may require a second look. He’s still bent on closing Guantanamo. Eric Holder and the lefty lawyers still reign supreme at the Justice Department, and KSM is headed for trial. And so far, not a single Obama official has been fired for what the president concedes was an abominable screwup. We have no new declaration of U.S. policy. How shocked could he be?

Broder divines that the “Christmas plot appears to have shaken Obama like nothing else that happened in his first year.” But how can we tell? This seems, frankly, to be a bit of wishful thinking, just as observers listening to the Nobel Peace Prize speech saw glimmers of a tougher Iran policy or a more robust assertion of American exceptionalism. Certainly we’ve come a long way since the Hawaii performance, when the president proclaimed the Christmas Day bombing plot the work of an “isolated extremist,” but the reaction has been a flurry of incremental, bureaucratic adjustments. Former 9/11 commission member John Lehman let it rip, deriding the Obama response:

President Obama just doesn’t get it. … I don’t think he has a clue. It’s all pure spin. He’s ignoring key issues and taking respectable professionals like John Brennan and turning them into hacks and shills. It’s beyond contempt. The president has ignored the 9/11 Commission’s report. … This whole idea that we can fix things by jumping higher and faster is ridiculous. The fact is that the system worked just like we said it would work if the president failed to give the Director of National Intelligence the tools he needs: it’s bloated, bureaucratic, layered, and stultified.

President Obama continues to totally ignore one of the important thrusts of our 9/11 recommendations, which is that you have to approach counterterrorism as a multiagency intelligence issue, and not as a law-enforcement issue.

Obama and his political gurus have figured out that the president’s national-security stance — downplaying the war against Islamic fundamentalists, hyper-legalistic rhetoric, a refusal to recognize jihadist attacks as part of a concerted war on the West, etc. — is a political loser. The public, Congress, and the media recoiled in horror when they saw the president’s ho-hum reaction to an attempt to incinerate nearly 300 people. But understanding the political peril does not signify a commitment to rethink policy assumptions. That would require a fundamental reorientation away from the “not Bush” policies, including the decision to classify terrorists captured in the U.S. as criminal defendants and to try them in civilian courts. Even the Washington Post editors sense that the response is somehow not commensurate with the gravity of the intelligence failure:

Mr. Obama’s solutions have the air of the small bore: a “training course” for the National Security Agency; a “dedicated capability responsible for enhancing record information on possible terrorists … for watchlisting purposes.” Perhaps a series of individual tweaks will do the job. But the administration report suggests that the problem is less tractable than Mr. Obama has acknowledged. His depiction Thursday of the shortcomings was admirably honest and more frightening than previously portrayed. His proposed fixes did not entirely reassure.

The fixes do not reassure because they do not begin to address the most basic errors of the Obama administration and its odd predilection, made odder by mismatched rhetoric, to see the war against Islamic fundamentalists as peripheral to its agenda. We will know that Obama has really been “shaken” when the war on Islamic terrorists is identified as such, when that becomes the core mission of the administration and when the president’s policies and not just his rhetoric changes.

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RIP William Odom

I was saddened to read of the death of William E. Odom, one of America’s leading soldier-scholars. In recent years he has become known as an outspoken critic of Bush foreign policy and advocate of withdrawal from Iraq. I disagreed with him, and we even debated at least once on the radio. But I never lost my respect or affection for him, formulated initially when, as a graduate student at Yale in 1991-92, I took a class with him on the Russian military. He was a refreshing outpost of pro-military, anti-communist thinking on a campus where neither viewpoint was much encouraged.

Bill Odom spent much of his career as a military intelligence officer specializing in the Soviet Union including serving as a military attaché at the U.S. Embassy in Moscow. He went to Columbia to receive an MA and Ph.D. in political science. While there he worked closely with a professor named Zbigniew Brzezinski. When Brzezinski became Jimmy Carter’s National Security Adviser, Odom became his military assistant. He then went on to become a three-star general and director of the National Security Agency in the Reagan administration. He finally retired in 1988 to pursue a career in the twin worlds of academia and think-tankery, which is how I came to know him.

During the Cold War, Odom had a reputation as a hawk and hardliner. (So, for that matter, did Brzezinski.) In the years since then, both seemed to drift to the left, though, in fairness to Odom, I am sure he would have denied it. He often said that he had opposed the Vietnam War from the start because he thought that containing North Vietnam was in the interests of China, not the United States. He opposed the Iraq War because he thought it was equally ill-advised. Unlike so many leading analysts and politicians, he did not turn into a dove only when it became clear the war was not going well: he was against the war from the beginning, which took some guts considering that he was employed by a conservative think tank, the Hudson Institute.

Where I truly disagreed with him was not in his opposition to the war in the first place-the decision to invade Iraq was a close call and there were good arguments on both sides. I thought he went too far when he said, during the course of the war, that victory was not an option and therefore we should pull out all of our troops, notwithstanding the dire likely consequences. He even puckishly authored an article in 2005 entitled “What’s Wrong with Cutting and Running?”

Notwithstanding his dovish views on Iraq (and related subjects, such as Iran), he remained committed to a fairly expansive view of the American role in the world, as he made clear in his book, co-authored with Robert Dujarric, America’s Inadvertent Empire. He approved of the “empire” in question, even if he never had much patience with those on either the Left or the Right who would place our ideals at the center of our foreign policy.

Agree with him or not, Odom deserves to be remembered for a long and illustrious career of service-a legacy carried on by his son, Mark, an army lieutenant-colonel who was wounded in Iraq. He was particularly notable for managing to combine scholarly achievement with a successful military career-a combination that both academia and the military too often frown upon.

I was saddened to read of the death of William E. Odom, one of America’s leading soldier-scholars. In recent years he has become known as an outspoken critic of Bush foreign policy and advocate of withdrawal from Iraq. I disagreed with him, and we even debated at least once on the radio. But I never lost my respect or affection for him, formulated initially when, as a graduate student at Yale in 1991-92, I took a class with him on the Russian military. He was a refreshing outpost of pro-military, anti-communist thinking on a campus where neither viewpoint was much encouraged.

Bill Odom spent much of his career as a military intelligence officer specializing in the Soviet Union including serving as a military attaché at the U.S. Embassy in Moscow. He went to Columbia to receive an MA and Ph.D. in political science. While there he worked closely with a professor named Zbigniew Brzezinski. When Brzezinski became Jimmy Carter’s National Security Adviser, Odom became his military assistant. He then went on to become a three-star general and director of the National Security Agency in the Reagan administration. He finally retired in 1988 to pursue a career in the twin worlds of academia and think-tankery, which is how I came to know him.

During the Cold War, Odom had a reputation as a hawk and hardliner. (So, for that matter, did Brzezinski.) In the years since then, both seemed to drift to the left, though, in fairness to Odom, I am sure he would have denied it. He often said that he had opposed the Vietnam War from the start because he thought that containing North Vietnam was in the interests of China, not the United States. He opposed the Iraq War because he thought it was equally ill-advised. Unlike so many leading analysts and politicians, he did not turn into a dove only when it became clear the war was not going well: he was against the war from the beginning, which took some guts considering that he was employed by a conservative think tank, the Hudson Institute.

Where I truly disagreed with him was not in his opposition to the war in the first place-the decision to invade Iraq was a close call and there were good arguments on both sides. I thought he went too far when he said, during the course of the war, that victory was not an option and therefore we should pull out all of our troops, notwithstanding the dire likely consequences. He even puckishly authored an article in 2005 entitled “What’s Wrong with Cutting and Running?”

Notwithstanding his dovish views on Iraq (and related subjects, such as Iran), he remained committed to a fairly expansive view of the American role in the world, as he made clear in his book, co-authored with Robert Dujarric, America’s Inadvertent Empire. He approved of the “empire” in question, even if he never had much patience with those on either the Left or the Right who would place our ideals at the center of our foreign policy.

Agree with him or not, Odom deserves to be remembered for a long and illustrious career of service-a legacy carried on by his son, Mark, an army lieutenant-colonel who was wounded in Iraq. He was particularly notable for managing to combine scholarly achievement with a successful military career-a combination that both academia and the military too often frown upon.

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The Free Flow of Classified Information Act

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

Given his particular set of credentials in national security, it is not a surprise that John McCain understands the critical need for secrecy in the conduct of foreign and military policy.  He has, for example, sharply criticized the New York Times for its December 2005 decision to reveal the National Security Agency’s Terrorist Surveillance Program, the highly classified effort to intercept the international telephone and email communications of al-Qaeda terrorists.  “I understand completely why the government charged with defending our security would want to discourage that from happening and hold the people who disclosed that damaging information accountable for their action,” McCain told an audience in Arlington, Virginia, on April 13.But exactly how is the government to uncover who the disclosers are? One way would be for it to issue a subpoena to the journalists who broke the story and ask them before a grand jury, under pain of a contempt citation, to disgorge the names of their confidential sources. That is precisely what the special prosecutor Patrick Fitzgerald did in issuing a subpoena to Judith Miller of the New York Times as he investigated the leak of the identity of the ostensibly undercover CIA operative Valerie Plame. Miller spent 85 days in jail refusing to comply with the subpoena before she changed her mind and identified Scooter Libby as her source.

A bill now before Congress would exempt journalists from having to testify in such cases. The bill is called the Free Flow of Information Act, but a better name might be the Free Flow of Classified Information Act. By making it almost impossible to apprehend leakers in government, the flow of highly secret information, already substantial, is likely to grow into a flood.  Hillary Clinton and Barack Obama are both supporting this legislation. So, also, is — of all people — John McCain. In addition to criticizing it sharply–he has called it “a license to do harm, perhaps serious harm,” he has also performed a pirouette to praise it as “a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

McCain’s effort to have it both ways is either evidence of serious intellectual confusion or shabby political calculation. For its part, the New York Times is insisting that without the law, the flow of news will slow and the public’s “right to know” will be seriously impaired.

I have sought to explain some of the problems with this contention in several articles: Why Journalists Are Not Above the LawA License to Leak and Not Every Leak is Fit To Print. Whatever one makes of my conclusions, the assertion by the Times that the news will dry up without a shield law is a ridiculous position for a newspaper that is currently in the process of slashing its staff by a hundred editors and reporters. Unless its newsroom is currently populated by a forest of deadwood, those cuts will limit its ability to report the news far more than the purely hypothetical loss of stories caused by the absence of a shield law.

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Was the NSA Terrorist Surveillance Program Illegal?

What are the proper limits of a president’s authority under Article II of the U.S. Constitution? The question is put squarely before the public by the release of a secret 2003 legal memorandum written by John Yoo inquiring whether a president could, among other things, order a prisoner’s eye to be poked out.

Yoo takes the view that the president’s powers as commander in chief in wartime are virtually unlimited, and can ride over federal statutes banning interrogation techniques like assault and maiming. The Justice Department disavowed this doctrine nine months after it was enunciated, and that seems entirely appropriate. Even in wartime, our constitutional history makes fairly clear that there are limits on what a president can do.

But where exactly do those limits reside? And how exactly do they bear on another controversy involving executive power: President Bush’s decision in late 2001 to authorize the National Security Agency to launch the Terrorist Surveillance Program. This program involved the interception of international calls between al-Qaeda suspects abroad and persons in the United States? Because the program seemingly violated the plain language of the Foreign Intelligence Surveillance Act and, as some also argue, the Fourth Amendment prohibition on warrantless searches, was it also every bit as much an overreach of executive power as the actions outlined in John Yoo’s torture memo?

The answer, in my view, is emphatically no.

To begin with, strong arguments have been made that to the extent FISA limited the president’s power, it was itself an unconstitutional usurpation of the president’s power. At first glance this assertion seems to be merely a restatement of Yoo’s thesis that the president’s powers are unlimited. But the difference is that for very good reason warrantless wiretapping in wartime has a long history in this country. For very good reason, legalized torture does not.

The numerous examples of warrantless searches carried out for foreign-policy purposes, some under taken by the Clinton administration even after FISA was on the books (as in the case of Aldrich Ames), suggest that the NSA activities are well within the boundaries of constitutionally acceptable wartime measures. That, in any case, was also the consensus of a panel of retired FISA court judges who testified before the Senate Judiciary Committee in 2006.

Second, Congress was repeatedly briefed about the NSA program over a period of years. Although one or two members expressed reservations, no formal objection was ever lodged. When the program was disclosed to the public by the New York Times in December 2005, members of Congress from both parties voiced dismay that a valuable counterterrorism program had been compromised. The assent of Congress must carry considerable weight in any assessment of the legal status of the NSA program.

Reasonable men (and women) can disagree about this, of course. There was considerable disagreement about the NSA program within the Bush Justice Department itself. But such disagreement, one of the pretexts for the New York Times‘s decision to reveal the highly secret program, is not itself a sign of trouble but of health. If these matters were simple, there would be no need for an extensive legal bureaucracy to consider them. But in the final analysis a mere declaration by the New York Times or any other critic of the Bush administration that an intelligence program was illegal or unconstitutional does not make it so.

What are the proper limits of a president’s authority under Article II of the U.S. Constitution? The question is put squarely before the public by the release of a secret 2003 legal memorandum written by John Yoo inquiring whether a president could, among other things, order a prisoner’s eye to be poked out.

Yoo takes the view that the president’s powers as commander in chief in wartime are virtually unlimited, and can ride over federal statutes banning interrogation techniques like assault and maiming. The Justice Department disavowed this doctrine nine months after it was enunciated, and that seems entirely appropriate. Even in wartime, our constitutional history makes fairly clear that there are limits on what a president can do.

But where exactly do those limits reside? And how exactly do they bear on another controversy involving executive power: President Bush’s decision in late 2001 to authorize the National Security Agency to launch the Terrorist Surveillance Program. This program involved the interception of international calls between al-Qaeda suspects abroad and persons in the United States? Because the program seemingly violated the plain language of the Foreign Intelligence Surveillance Act and, as some also argue, the Fourth Amendment prohibition on warrantless searches, was it also every bit as much an overreach of executive power as the actions outlined in John Yoo’s torture memo?

The answer, in my view, is emphatically no.

To begin with, strong arguments have been made that to the extent FISA limited the president’s power, it was itself an unconstitutional usurpation of the president’s power. At first glance this assertion seems to be merely a restatement of Yoo’s thesis that the president’s powers are unlimited. But the difference is that for very good reason warrantless wiretapping in wartime has a long history in this country. For very good reason, legalized torture does not.

The numerous examples of warrantless searches carried out for foreign-policy purposes, some under taken by the Clinton administration even after FISA was on the books (as in the case of Aldrich Ames), suggest that the NSA activities are well within the boundaries of constitutionally acceptable wartime measures. That, in any case, was also the consensus of a panel of retired FISA court judges who testified before the Senate Judiciary Committee in 2006.

Second, Congress was repeatedly briefed about the NSA program over a period of years. Although one or two members expressed reservations, no formal objection was ever lodged. When the program was disclosed to the public by the New York Times in December 2005, members of Congress from both parties voiced dismay that a valuable counterterrorism program had been compromised. The assent of Congress must carry considerable weight in any assessment of the legal status of the NSA program.

Reasonable men (and women) can disagree about this, of course. There was considerable disagreement about the NSA program within the Bush Justice Department itself. But such disagreement, one of the pretexts for the New York Times‘s decision to reveal the highly secret program, is not itself a sign of trouble but of health. If these matters were simple, there would be no need for an extensive legal bureaucracy to consider them. But in the final analysis a mere declaration by the New York Times or any other critic of the Bush administration that an intelligence program was illegal or unconstitutional does not make it so.

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Bring Back the OSS?

We’ve frequently criticized the performance of the intelligence community in this space. Criticism is easy, especially when things as bad they are. But criticism of something so vital to our security can only take one so far. At some point, one has to turn and look for solutions. That’s where I run into trouble.

When thinking about institutions so complicated, so secretive, so self-protective, so entangled with Congress, so impervious to genuine reform, it becomes difficult to conceive of a plan that would be radical enough and also politically feasible.

Presumably, one approach would be build some new and highly functional institutions from scratch to accomplish narrowly tailored purposes — like fighting terrorists.

My friend Max Boot has been giving the matter some serious thought and that is the direction he has proposed.  In testimony before the House Armed Services Committee, he presented the bold idea of resurrecting the Office of Strategic Services (OSS)  “that was created in 1942 to gather and analyze intelligence as well as to conduct low-intensity warfare behind enemy lines in occupied Europe and Asia.”

OSS was disbanded after World War II; both the Green Berets and the CIA trace their lineage to this august ancestor. My proposal is to re-create OSS by bringing together under one roof not only Army Special Forces, civil-affairs, and psy-ops but also the CIA’s paramilitary Special Activities Division, which has always been a bit of a bureaucratic orphan at Langley (and which is staffed largely by Special Operations veterans). This could be a joint civil-military agency under the combined oversight of the Secretary of Defense and the Director of National Intelligence, like the Defense Intelligence Agency or the National Security Agency. It would bring together in one place all of the key skill sets needed to wage the softer side of the war on terror. Like SOCOM [U.S. Special Operations Command], it would have access to military personnel and assets; but like the CIA’s Special Activities Division, its operations would contain a higher degree of “covertness,” flexibility, and “deniability” than those carried out by the uniformed military.

Max is not only a super-smart guy, he’s also an influential one: lately, he’s been whispering into the ear of one of the candidates for the presidency of the United States.

This if from a speech by that candidate:

I would also set up a new civil-military agency patterned after the Office of Strategic Services in World War II. A modern-day OSS could draw together unconventional warfare, civil-affairs, paramilitary and psychological-warfare specialists from the military together with covert-action operators from our intelligence agencies and experts in anthropology, advertising, foreign cultures, and numerous other disciplines from inside and outside government. In the spirit of the original OSS, this would be a small, nimble, can-do organization that would fight terrorist subversion across the world and in cyberspace. It could take risks that our bureaucracies today are afraid to take – risks such as infiltrating agents who lack diplomatic cover into terrorist organizations. It could even lead in the front-line efforts to rebuild failed states. A cadre of such undercover operatives would allow us to gain the intelligence on terrorist activities that we don’t get today from our high-tech surveillance systems and from a CIA clandestine service that works almost entirely out of our embassies abroad.

Does this sound familiar?

The question of the day is: which candidate has embraced Max Boot’s proposal: Barack Obama, Hillary Clinton, or John McCain?

The second question of the day: will meaningful intelligence reform ever come about or will it take a second September 11 to get rid of the clowns?

We’ve frequently criticized the performance of the intelligence community in this space. Criticism is easy, especially when things as bad they are. But criticism of something so vital to our security can only take one so far. At some point, one has to turn and look for solutions. That’s where I run into trouble.

When thinking about institutions so complicated, so secretive, so self-protective, so entangled with Congress, so impervious to genuine reform, it becomes difficult to conceive of a plan that would be radical enough and also politically feasible.

Presumably, one approach would be build some new and highly functional institutions from scratch to accomplish narrowly tailored purposes — like fighting terrorists.

My friend Max Boot has been giving the matter some serious thought and that is the direction he has proposed.  In testimony before the House Armed Services Committee, he presented the bold idea of resurrecting the Office of Strategic Services (OSS)  “that was created in 1942 to gather and analyze intelligence as well as to conduct low-intensity warfare behind enemy lines in occupied Europe and Asia.”

OSS was disbanded after World War II; both the Green Berets and the CIA trace their lineage to this august ancestor. My proposal is to re-create OSS by bringing together under one roof not only Army Special Forces, civil-affairs, and psy-ops but also the CIA’s paramilitary Special Activities Division, which has always been a bit of a bureaucratic orphan at Langley (and which is staffed largely by Special Operations veterans). This could be a joint civil-military agency under the combined oversight of the Secretary of Defense and the Director of National Intelligence, like the Defense Intelligence Agency or the National Security Agency. It would bring together in one place all of the key skill sets needed to wage the softer side of the war on terror. Like SOCOM [U.S. Special Operations Command], it would have access to military personnel and assets; but like the CIA’s Special Activities Division, its operations would contain a higher degree of “covertness,” flexibility, and “deniability” than those carried out by the uniformed military.

Max is not only a super-smart guy, he’s also an influential one: lately, he’s been whispering into the ear of one of the candidates for the presidency of the United States.

This if from a speech by that candidate:

I would also set up a new civil-military agency patterned after the Office of Strategic Services in World War II. A modern-day OSS could draw together unconventional warfare, civil-affairs, paramilitary and psychological-warfare specialists from the military together with covert-action operators from our intelligence agencies and experts in anthropology, advertising, foreign cultures, and numerous other disciplines from inside and outside government. In the spirit of the original OSS, this would be a small, nimble, can-do organization that would fight terrorist subversion across the world and in cyberspace. It could take risks that our bureaucracies today are afraid to take – risks such as infiltrating agents who lack diplomatic cover into terrorist organizations. It could even lead in the front-line efforts to rebuild failed states. A cadre of such undercover operatives would allow us to gain the intelligence on terrorist activities that we don’t get today from our high-tech surveillance systems and from a CIA clandestine service that works almost entirely out of our embassies abroad.

Does this sound familiar?

The question of the day is: which candidate has embraced Max Boot’s proposal: Barack Obama, Hillary Clinton, or John McCain?

The second question of the day: will meaningful intelligence reform ever come about or will it take a second September 11 to get rid of the clowns?

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Loose Lips Sink Newspapers

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

Read Less

The Real Warrantless Wiretapping Scandal

“A White House plan to broaden the National Security Agency’s wiretapping powers won a key procedural victory in the Senate on Thursday, as backers defeated a more restrictive plan by Senate Democrats that would have imposed more court oversight on government spying,” the New York Times reported this morning.

This is good news. The defeat of the Democratic Senators’ plan will make the country safer. It also makes clear exactly how phony the entire controversy over so-called wireless wiretapping is.

In making their case, the Senate Democrats, led by Senator Leahy, have pointed to past abuses, including especially the National Security Agency’s Terrorist Surveillance Program (TSP)  disclosed to the world by the New York Times

“In December 2005,” Leahy’s report on the FISA Act amendments states, “the American public learned for the first time that shortly after 9/11 the President had authorized the NSA to conduct secret surveillance activities inside the United States completely outside of FISA, and without congressional consent.”

One is compelled to wonder, in reading such statements, whether Leahy and his colleagues believe what they are saying to be true, or want the public to believe it to be true even as they know it to be false.

When the Bush administration initiated the Terrorist Surveillance Program, Congress was briefed on the program. The briefing was, of course, confined to the “gang of eight,” the leaders of both parties in both houses of Congress, and the ranking members of the intelligence committees of the two chambers, but this was done according to Congress’s own rules regarding highly sensitive information.

More than a dozen successive briefings were repeated at regular intervals over the following years. Though Congress did not formally approve or disapprove of the program in a vote, that would not be a normal procedure for a highly classified program. In the context of secrecy, Congress did give its “consent” to the TSP program in the normal meaning of that word.

What is more, a key detail that the Leahy report fails to note, but which eight Republican senators on the Committee include in their “minority views,” is that the FISA Court itself, in a 2002 ruling, pointed out that all courts that have decided the issue, have held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

The Democrats who are raising a hue and cry about illegal warrantless wiretapping are wrong on the merits, and if they have read their own report, including the minority views, they know they are wrong.

They are also, undoubtedly, wrong on the politics. Could it possibly be a winning theme to block one of the of intelligence community’s most critical efforts to connect the dots and avert a second September 11? The fact that the Senate yesterday voted by 60-36 to set aside Senator Leahy’s proposals, suggests that, in at least some quarters of the Democratic party, wisdom, or honesty, or perhaps mere electoral prudence, can still be found.

“A White House plan to broaden the National Security Agency’s wiretapping powers won a key procedural victory in the Senate on Thursday, as backers defeated a more restrictive plan by Senate Democrats that would have imposed more court oversight on government spying,” the New York Times reported this morning.

This is good news. The defeat of the Democratic Senators’ plan will make the country safer. It also makes clear exactly how phony the entire controversy over so-called wireless wiretapping is.

In making their case, the Senate Democrats, led by Senator Leahy, have pointed to past abuses, including especially the National Security Agency’s Terrorist Surveillance Program (TSP)  disclosed to the world by the New York Times

“In December 2005,” Leahy’s report on the FISA Act amendments states, “the American public learned for the first time that shortly after 9/11 the President had authorized the NSA to conduct secret surveillance activities inside the United States completely outside of FISA, and without congressional consent.”

One is compelled to wonder, in reading such statements, whether Leahy and his colleagues believe what they are saying to be true, or want the public to believe it to be true even as they know it to be false.

When the Bush administration initiated the Terrorist Surveillance Program, Congress was briefed on the program. The briefing was, of course, confined to the “gang of eight,” the leaders of both parties in both houses of Congress, and the ranking members of the intelligence committees of the two chambers, but this was done according to Congress’s own rules regarding highly sensitive information.

More than a dozen successive briefings were repeated at regular intervals over the following years. Though Congress did not formally approve or disapprove of the program in a vote, that would not be a normal procedure for a highly classified program. In the context of secrecy, Congress did give its “consent” to the TSP program in the normal meaning of that word.

What is more, a key detail that the Leahy report fails to note, but which eight Republican senators on the Committee include in their “minority views,” is that the FISA Court itself, in a 2002 ruling, pointed out that all courts that have decided the issue, have held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

The Democrats who are raising a hue and cry about illegal warrantless wiretapping are wrong on the merits, and if they have read their own report, including the minority views, they know they are wrong.

They are also, undoubtedly, wrong on the politics. Could it possibly be a winning theme to block one of the of intelligence community’s most critical efforts to connect the dots and avert a second September 11? The fact that the Senate yesterday voted by 60-36 to set aside Senator Leahy’s proposals, suggests that, in at least some quarters of the Democratic party, wisdom, or honesty, or perhaps mere electoral prudence, can still be found.

Read Less

Is the New York Times Being Wiretapped?

The New York Times has been howling about “warrantless wiretapping” conducted in the United States by the National Security Agency and directed against al-Qaeda operatives who might be wandering around our country carrying carrying knitting needles or other household implements that are still allowed on planes. 

But even as the newspaper worries about the privacy rights of suspected terrorists, why has it not said a word about the possibility that it itself is a target of warrantless surveillance, and not by the U.S. government but by far less friendly forces? Is the newspaper unaware of the problem, or does it find it inconvenient to acknowledge it, or does it simply have its head in the sand?

Without subjecting Arthur Sulzberger, Jr. to enhanced interrogation methods, we cannot say. But Jennifer Dyer, formerly a Commander in U.S. Naval Intelligence, offers her analysis of the issue in another Connecting the Dots exclusive. Her short answer is yes, such eavesdropping is probably happening. Her long answer is right here:

Russia, in particular, has an extensive history of using its diplomatic and civilian facilities abroad as bases for intelligence collection — and for collecting against civilian targets as well as government agencies. But Russia is not the only suspect; and technological advances have changed the collection targets and methods somewhat, since the public last had occasion to think very hard about this topic.

The dimensions of the problem are key factors. A Department of Defense publication from 1989 [p. 16] provides a useful overview of former-Soviet attempts and capabilities to monitor foreign communications abroad, pointing out, notably, the suitability of the Soviet consular compound in New York City for intercepting several types of voice communications in most of Manhattan. Although phone communications were overwhelmingly transmitted via landline at that time, the DOD security study observed that in more than half of all phone connections, calls were switched randomly over interim links to optimize circuit loading [p. 159], and that it was impossible to ensure that every potential connection path was secure against monitoring.

This warning was cutting-edge in the 1980′s, when physical tapping, of the phone lines associated with specific individuals or organizations, was still what the average person thought of in this regard. If there were no men in trench coats crouched in leased office spaces next door, could we not assume we were tap-free?

Foreign intelligence agencies, however, study our civil-communications infrastructure far more closely than we do, and for the specific purpose of identifying vulnerabilities. It has been quite some time since the surveillance of a phone call had to be undertaken next door, or even near a switching room in a phone company building. In the wireless microwave age, with routine satellite connections and high-data-rate transmission, 90 percent of the surveillance approach need not even involve collectors physically on the same continent. Soviet collectors in the 1980′s might seek to exploit phone junction facilities; in the 199’0s their Russian successors in New York posted vans near microwave towers. Actual exploitation of the data collected might occur within 24 hours, as linguists labored over replayed recordings.

Today, it is fairly simple not only to monitor microwave relay facilities, but to simply monitor cell-phone chatter through the airwaves. In fact, any phone call may be connected in a variety of ways, regardless of how it was placed by the originator; calling from a fixed, landline phone might once have increased the difficulty of intercept, but today it serves rather to make the originator easier to identify, as links in the transmission path are exploited. Moreover, it takes very little in the way of interception and transmission equipment to instantaneously relay anything collected to the other side of the world, where linguists — whose presence at a consulate, in a big bunker, might seem odd — can quickly interpret and report, unremarked, at home.

Such electronic surveillance produces some of the cheapest and highest-payoff intelligence there is, and we may apply a good rule of thumb from the intelligence world here: if it can be done, someone is trying to do it. It is reasonable to assume that Russia, as she has in the past, performs such monitoring from her consulate on Central Park East, and that Russian surveillance can intercept much of Manhattan via the airwaves, from its roof. Knowing the recent history of Russian attempts to exploit communications relay points with mobile collection, we may equally assume that that is an ongoing effort.

Russia, again, is not our only suspect. While there is less direct evidence available to the public on Chinese efforts at electronic surveillance, we know that espionage against the U.S. is a very high priority for China, and the rule of thumb suggests Beijing will try this method, as well as the human contact espionage China is best known for. China’s New York consulate on East 61 Street provides a useful vantage point for electronic collection. However, a nation need not have a diplomatic facility in New York to have a collection base there. The Iranian Alavi Foundation, a putative charitable foundation that has fallen under suspicion by U.S. federal agencies as a base for espionage and the support of terror cells, owns the 32-story building it occupies at 52nd and Fifth — a position with advantages for electronic collection in Manhattan.

Physical intercept of signals is, of course, only a primitive method of electronic surveillance in today’s technological environment. Because it remains cheap and high-payoff, it will continue for some time. But recent successes in information technology (IT) based espionage highlight the real feasibility of obtaining large amounts of intelligence by intercepting communications digitally. As phone and personal computer capabilities merge, it will be increasingly irrelevant to separate attacks against one from attacks against the other.

Probably the most celebrated monitoring attack to date against a phone network was the “Athens Affair” in 2004-05, when still-unidentified cyber-attackers hacked into switching computers in Greece’s Vodafone network and monitored more than 100 phones used by government officials and private civilians. (A full technical explanation of the hackers’ approach can be found here.)

Although these attackers have not been identified, China was directly implicated in the hacking of German government computers in 2007, when German authorities discovered that data was being “siphoned off” daily from computers in the German Chancellery and other government agencies, by hackers in Lanzhou, Canton Province, and Beijing. The years 2006-07 were busy ones for China’s hackers, who were fingered in network intrusions in the British government  and the U. S. Departments of Defense and Commerce. Russia demonstrated some network intrusion prowess of her own in a broad scale cyber attack on Estonia’s government, public facilities, and private organizations – including news media computers — in April-May of 2007.

While only one of these data network intrusions (the Chinese attack on German systems) was characterized by officials as an attempt at extended monitoring, per se, they underscore the easy availability of the technology to manipulate computer networks, and the aptitude of, at a minimum, China and Russia for exploiting it. The applicability of such capabilities to monitoring the journalists at the New York Times is reinforced by the success of eccentric American hacker Adrian Lamo in penetrating the New York Times computer network in 2004. Lamo confessed that while online with the New York Times network, he was able to view not only employment and other personal records of the New York Times staff, but was able to obtain the private phone numbers of journalists and contributors, such as former President Jimmy Carter.

Of course, if the intelligence collector is China, “Trojan” hardware sold to IT providers may be the placement method. The U.S. government decided not to even install 16,000 computers manufactured by the Chinese firm Lenovo, in the wake of Chinese intrusions on U.S. government networks in 2006. Russia’s history of introducing Trojan hardware into U.S. embassies and consulates was certainly a historical factor in this security decision [p. 17]. However, private news organizations do not routinely consider the possibility that IT hardware — phones or computers — that they purchase from commercial vendors may contain manufacturer-embedded code or devices for long-term exploitation.

If it can be done, someone is trying to do it.

The New York Times has been howling about “warrantless wiretapping” conducted in the United States by the National Security Agency and directed against al-Qaeda operatives who might be wandering around our country carrying carrying knitting needles or other household implements that are still allowed on planes. 

But even as the newspaper worries about the privacy rights of suspected terrorists, why has it not said a word about the possibility that it itself is a target of warrantless surveillance, and not by the U.S. government but by far less friendly forces? Is the newspaper unaware of the problem, or does it find it inconvenient to acknowledge it, or does it simply have its head in the sand?

Without subjecting Arthur Sulzberger, Jr. to enhanced interrogation methods, we cannot say. But Jennifer Dyer, formerly a Commander in U.S. Naval Intelligence, offers her analysis of the issue in another Connecting the Dots exclusive. Her short answer is yes, such eavesdropping is probably happening. Her long answer is right here:

Russia, in particular, has an extensive history of using its diplomatic and civilian facilities abroad as bases for intelligence collection — and for collecting against civilian targets as well as government agencies. But Russia is not the only suspect; and technological advances have changed the collection targets and methods somewhat, since the public last had occasion to think very hard about this topic.

The dimensions of the problem are key factors. A Department of Defense publication from 1989 [p. 16] provides a useful overview of former-Soviet attempts and capabilities to monitor foreign communications abroad, pointing out, notably, the suitability of the Soviet consular compound in New York City for intercepting several types of voice communications in most of Manhattan. Although phone communications were overwhelmingly transmitted via landline at that time, the DOD security study observed that in more than half of all phone connections, calls were switched randomly over interim links to optimize circuit loading [p. 159], and that it was impossible to ensure that every potential connection path was secure against monitoring.

This warning was cutting-edge in the 1980′s, when physical tapping, of the phone lines associated with specific individuals or organizations, was still what the average person thought of in this regard. If there were no men in trench coats crouched in leased office spaces next door, could we not assume we were tap-free?

Foreign intelligence agencies, however, study our civil-communications infrastructure far more closely than we do, and for the specific purpose of identifying vulnerabilities. It has been quite some time since the surveillance of a phone call had to be undertaken next door, or even near a switching room in a phone company building. In the wireless microwave age, with routine satellite connections and high-data-rate transmission, 90 percent of the surveillance approach need not even involve collectors physically on the same continent. Soviet collectors in the 1980′s might seek to exploit phone junction facilities; in the 199’0s their Russian successors in New York posted vans near microwave towers. Actual exploitation of the data collected might occur within 24 hours, as linguists labored over replayed recordings.

Today, it is fairly simple not only to monitor microwave relay facilities, but to simply monitor cell-phone chatter through the airwaves. In fact, any phone call may be connected in a variety of ways, regardless of how it was placed by the originator; calling from a fixed, landline phone might once have increased the difficulty of intercept, but today it serves rather to make the originator easier to identify, as links in the transmission path are exploited. Moreover, it takes very little in the way of interception and transmission equipment to instantaneously relay anything collected to the other side of the world, where linguists — whose presence at a consulate, in a big bunker, might seem odd — can quickly interpret and report, unremarked, at home.

Such electronic surveillance produces some of the cheapest and highest-payoff intelligence there is, and we may apply a good rule of thumb from the intelligence world here: if it can be done, someone is trying to do it. It is reasonable to assume that Russia, as she has in the past, performs such monitoring from her consulate on Central Park East, and that Russian surveillance can intercept much of Manhattan via the airwaves, from its roof. Knowing the recent history of Russian attempts to exploit communications relay points with mobile collection, we may equally assume that that is an ongoing effort.

Russia, again, is not our only suspect. While there is less direct evidence available to the public on Chinese efforts at electronic surveillance, we know that espionage against the U.S. is a very high priority for China, and the rule of thumb suggests Beijing will try this method, as well as the human contact espionage China is best known for. China’s New York consulate on East 61 Street provides a useful vantage point for electronic collection. However, a nation need not have a diplomatic facility in New York to have a collection base there. The Iranian Alavi Foundation, a putative charitable foundation that has fallen under suspicion by U.S. federal agencies as a base for espionage and the support of terror cells, owns the 32-story building it occupies at 52nd and Fifth — a position with advantages for electronic collection in Manhattan.

Physical intercept of signals is, of course, only a primitive method of electronic surveillance in today’s technological environment. Because it remains cheap and high-payoff, it will continue for some time. But recent successes in information technology (IT) based espionage highlight the real feasibility of obtaining large amounts of intelligence by intercepting communications digitally. As phone and personal computer capabilities merge, it will be increasingly irrelevant to separate attacks against one from attacks against the other.

Probably the most celebrated monitoring attack to date against a phone network was the “Athens Affair” in 2004-05, when still-unidentified cyber-attackers hacked into switching computers in Greece’s Vodafone network and monitored more than 100 phones used by government officials and private civilians. (A full technical explanation of the hackers’ approach can be found here.)

Although these attackers have not been identified, China was directly implicated in the hacking of German government computers in 2007, when German authorities discovered that data was being “siphoned off” daily from computers in the German Chancellery and other government agencies, by hackers in Lanzhou, Canton Province, and Beijing. The years 2006-07 were busy ones for China’s hackers, who were fingered in network intrusions in the British government  and the U. S. Departments of Defense and Commerce. Russia demonstrated some network intrusion prowess of her own in a broad scale cyber attack on Estonia’s government, public facilities, and private organizations – including news media computers — in April-May of 2007.

While only one of these data network intrusions (the Chinese attack on German systems) was characterized by officials as an attempt at extended monitoring, per se, they underscore the easy availability of the technology to manipulate computer networks, and the aptitude of, at a minimum, China and Russia for exploiting it. The applicability of such capabilities to monitoring the journalists at the New York Times is reinforced by the success of eccentric American hacker Adrian Lamo in penetrating the New York Times computer network in 2004. Lamo confessed that while online with the New York Times network, he was able to view not only employment and other personal records of the New York Times staff, but was able to obtain the private phone numbers of journalists and contributors, such as former President Jimmy Carter.

Of course, if the intelligence collector is China, “Trojan” hardware sold to IT providers may be the placement method. The U.S. government decided not to even install 16,000 computers manufactured by the Chinese firm Lenovo, in the wake of Chinese intrusions on U.S. government networks in 2006. Russia’s history of introducing Trojan hardware into U.S. embassies and consulates was certainly a historical factor in this security decision [p. 17]. However, private news organizations do not routinely consider the possibility that IT hardware — phones or computers — that they purchase from commercial vendors may contain manufacturer-embedded code or devices for long-term exploitation.

If it can be done, someone is trying to do it.

Read Less

Lost In Translation

Pick a foreign language, any language (except Spanish and Bureaucratese), and I can guarantee that U.S. intelligence has a severe lack of personnel conversant in that tongue. The more critical the language to our intelligence efforts, the worse the shortage.

Take Chinese. The National Security Agency lacks Chinese speakers to translate all the decrypted commuications it picks up. What does it do in response? It hires outside translation services. One of them, unfortunately, was run by Chinese intelligence itself.

Naval intelligence officials familiar with the Chinese spy penetration said the access to both “raw” and analyzed intelligence at Kunia caused significant damage by giving China’s government details on both the targets and the sources of U.S. spying operations. Such information would permit the Chinese to block the eavesdropping or to provide false and misleading “disinformation” to U.S. intelligence.

The redoubtable Bill Gertz has the full story in today’s Washington Times.

Pick a foreign language, any language (except Spanish and Bureaucratese), and I can guarantee that U.S. intelligence has a severe lack of personnel conversant in that tongue. The more critical the language to our intelligence efforts, the worse the shortage.

Take Chinese. The National Security Agency lacks Chinese speakers to translate all the decrypted commuications it picks up. What does it do in response? It hires outside translation services. One of them, unfortunately, was run by Chinese intelligence itself.

Naval intelligence officials familiar with the Chinese spy penetration said the access to both “raw” and analyzed intelligence at Kunia caused significant damage by giving China’s government details on both the targets and the sources of U.S. spying operations. Such information would permit the Chinese to block the eavesdropping or to provide false and misleading “disinformation” to U.S. intelligence.

The redoubtable Bill Gertz has the full story in today’s Washington Times.

Read Less

Eavesdropping on Hell

Along with interrogations of captured al-Qaeda fighters, communications intelligence (known as COMINT, in the intel trade) is one of the keys to American self-defense. Congress has long recognized the critical nature of this brand of intelligence. In the aftermath of World War II, it protected American activities in this realm in a special statute, Section 798 of Title 18, which makes it a crime to publish classified information pertaining to COMINT.

With the Bush administration’s failure to prosecute the editors and reporters of the New York Times, who in 2005 compromised one of America’s most critical programs for tracking al-Qaeda communications, Section 798 seems to have lapsed into desuetude. Evidently, the political costs of carrying out such a prosecution were deemed too great, and the benefits to national security, when weighed in the balance, insufficient.

In the wake of the Times’s disclosures, it is impossible to say whether al-Qaeda operatives became more careful than they already were in their use of emails and telephone communications. But that would be a logical supposition.

Whether or not that is the case, it is worth taking note of a chapter from a different era, when one of the world’s most evil regimes was carrying out its most evil deed—the extermination of the Jews. Eavesdropping on Hell is an authoritative account, produced by the National Security Agency, of what was learned about the Holocaust from COMINT as it was unfolding.

It appears that the Nazis, acutely aware of the price they might pay for their actions, were highly disciplined in their approach to using radios and other vulnerable means of communication. The result was that:

Allied communications intelligence discovered nothing of the prewar and early wartime high-level Nazi planning for the general campaign against Europe’s Jews and other groups targeted for elimination. This situation also was true for most of the large-scale wartime plans, such as the massacres in the western Soviet Union or the death camps. There were [a] few exceptions to this trend, most notably the intercept and decryption of German police messages that indicated that Italian Jews were soon to be subjected to roundup and deportation to camps in October 1943. Usually, though, Nazi planning, preparations, and orders to carry out these operations were not communicated in a means such as radio that could be intercepted by the Allied monitoring stations. Plans and orders were delivered by courier or were communicated orally at meetings and thus denied to Allied monitors. As a result, information that could have warned of an impending operation was missed.

The entire study is a demonstration of the vital importance of COMINT and the consequences of its absence.

Along with interrogations of captured al-Qaeda fighters, communications intelligence (known as COMINT, in the intel trade) is one of the keys to American self-defense. Congress has long recognized the critical nature of this brand of intelligence. In the aftermath of World War II, it protected American activities in this realm in a special statute, Section 798 of Title 18, which makes it a crime to publish classified information pertaining to COMINT.

With the Bush administration’s failure to prosecute the editors and reporters of the New York Times, who in 2005 compromised one of America’s most critical programs for tracking al-Qaeda communications, Section 798 seems to have lapsed into desuetude. Evidently, the political costs of carrying out such a prosecution were deemed too great, and the benefits to national security, when weighed in the balance, insufficient.

In the wake of the Times’s disclosures, it is impossible to say whether al-Qaeda operatives became more careful than they already were in their use of emails and telephone communications. But that would be a logical supposition.

Whether or not that is the case, it is worth taking note of a chapter from a different era, when one of the world’s most evil regimes was carrying out its most evil deed—the extermination of the Jews. Eavesdropping on Hell is an authoritative account, produced by the National Security Agency, of what was learned about the Holocaust from COMINT as it was unfolding.

It appears that the Nazis, acutely aware of the price they might pay for their actions, were highly disciplined in their approach to using radios and other vulnerable means of communication. The result was that:

Allied communications intelligence discovered nothing of the prewar and early wartime high-level Nazi planning for the general campaign against Europe’s Jews and other groups targeted for elimination. This situation also was true for most of the large-scale wartime plans, such as the massacres in the western Soviet Union or the death camps. There were [a] few exceptions to this trend, most notably the intercept and decryption of German police messages that indicated that Italian Jews were soon to be subjected to roundup and deportation to camps in October 1943. Usually, though, Nazi planning, preparations, and orders to carry out these operations were not communicated in a means such as radio that could be intercepted by the Allied monitoring stations. Plans and orders were delivered by courier or were communicated orally at meetings and thus denied to Allied monitors. As a result, information that could have warned of an impending operation was missed.

The entire study is a demonstration of the vital importance of COMINT and the consequences of its absence.

Read Less

Imperiled by the Imperial Judiciary

Must reading today is Andy McCarthy at NRO on recklessness at the FISA court, the secret panel established under the Foreign Intelligence Surveillance Act of 1978 to place electronic surveillance in matters of espionage and counterterrorism under judicial review.

Earlier this year, a judge who sits on the FISA court took the unprecedented step of ruling that our intelligence community “needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.”

In other words, in the middle of a war in which the interception of enemy communications is one of our most vital tools, an unelected judge, whose name remains secret, is tying our counterterrorism effort abroad in knots.

Is the judge’s astonishing ruling a remotely plausible interpretation of FISA? McCarthy argues persuasively that it is not. But ultimately, we cannot say. The ruling itself, like the judge’s identity, remains secret.

What is really at stake here? Sometimes it might be the ability to move quickly in finding an al Qaeda operative. Sometimes it might cost an American his life. A story in yesterday’s New York Post, “‘Wire’ Law Failed Lost GI,” offers an example of the trouble the FISA court has placed us in:

U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year. . .

This week, Congress plans to vote on a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act—problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.

In the early hours of May 12, seven U.S. soldiers—including Spc. Jimenez—were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the “Triangle of Death.”

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers—obeying strict U.S. laws about surveillance—cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the “probable cause” necessary for the attorney general to grant such “emergency” permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

Is this any way to wage war? Where is the outrage?

Must reading today is Andy McCarthy at NRO on recklessness at the FISA court, the secret panel established under the Foreign Intelligence Surveillance Act of 1978 to place electronic surveillance in matters of espionage and counterterrorism under judicial review.

Earlier this year, a judge who sits on the FISA court took the unprecedented step of ruling that our intelligence community “needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.”

In other words, in the middle of a war in which the interception of enemy communications is one of our most vital tools, an unelected judge, whose name remains secret, is tying our counterterrorism effort abroad in knots.

Is the judge’s astonishing ruling a remotely plausible interpretation of FISA? McCarthy argues persuasively that it is not. But ultimately, we cannot say. The ruling itself, like the judge’s identity, remains secret.

What is really at stake here? Sometimes it might be the ability to move quickly in finding an al Qaeda operative. Sometimes it might cost an American his life. A story in yesterday’s New York Post, “‘Wire’ Law Failed Lost GI,” offers an example of the trouble the FISA court has placed us in:

U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year. . .

This week, Congress plans to vote on a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act—problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.

In the early hours of May 12, seven U.S. soldiers—including Spc. Jimenez—were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the “Triangle of Death.”

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers—obeying strict U.S. laws about surveillance—cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the “probable cause” necessary for the attorney general to grant such “emergency” permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

Is this any way to wage war? Where is the outrage?

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The Leak Wars

“The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told Senators on Monday”–the New York Times, September 11, 2007

This is curious. Here we have our top spy revealing one of our nation’s most sensitive secrets, involving not only sources and methods but also that holy of holies: communications intelligence. 

If, say, the fruits of an ongoing U.S. surveillance program had been something uncovered and published by the New York Times for all the world to read, would a whole host of critics, including me, be up in arms? What is going on?

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“The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told Senators on Monday”–the New York Times, September 11, 2007

This is curious. Here we have our top spy revealing one of our nation’s most sensitive secrets, involving not only sources and methods but also that holy of holies: communications intelligence. 

If, say, the fruits of an ongoing U.S. surveillance program had been something uncovered and published by the New York Times for all the world to read, would a whole host of critics, including me, be up in arms? What is going on?

The conundrum is easily resolved. First, McConnell, as the nation’s top intelligence officer, and unlike any reporter or editor at the Times, is in a position to evaluate whether a given disclosure will cause damage to American security.

Second, McConnell has the authority, under law, to declassify information when he determines it is in the national interest. The New York Times claims the same authority under the First Amendment. But the First Amendment is compatible with a whole range of restrictions on the press, as in the law of libel, the laws governing commercial speech, and so forth. By contrast, the idea that the media is not obligated to follow laws currently on the books restricting publication of national-defense information flies in the face of both reason and precedent.  

Third, in disclosing the success of the U.S. surveillance program in averting a disaster in Germany, McConnell was not revealing anything new. Why not? Because the Times had already compromised the key facts about the scope of National Security Agency surveillance in a series of stories that began in December 2005.

The fact that even after the Times had tipped them off, terrorists continue to use readily interceptible telephones and email demonstrates how difficult it is for them to find alternative means of rapid long-distance communication. But that is by no means a justification for what the Times did. A host of governments officials–Democrats and Republicans alike–have attested to the damage inflicted on U.S. counterterrorism efforts by the Times’s reporting.

CIA Director General Michael V. Hayden, speaking earlier this week at the Council on Foreign Relations, addressed the problem. His words are worth quoting at length:

Revelations of sources and methods or what seems to me to be an impulse to drag anything CIA does to the darkest corner of the room can make it very difficult for us to perform our vital work. When our operations are exposed–you know, the legal, authorized operations overseen by Congress–when those operations are exposed, it reduces the space and it damages the tools we use to protect Americans.

After the press report on how banking records in the international Swiss network could be monitored, I read a claim that this leak–and I’m quoting now–”bears no resemblance to security breaches”. . . I could not disagree more strongly. In a war that largely depends on our success on collecting intelligence on the enemy, publishing information on our sources and methods can be just as damaging as revelations of troop or ship movements have been in the past. Now the compromise to safety can be both immediate and lasting, and it extends beyond specific individuals. Each revelation of our methods in tracking terrorists, tracking WMD, tracking other threats allows our enemies to cover their tracks and change their practices. We’ll respond, but it takes us valuable time to readjust.

Now, some are out there who say there’s no evidence that leaks of classified information have actually harmed national security. As CIA director, I’m telling you there is and they have. Let me give you just two examples. In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources whose family was also endangered. The revelations had an immediate chilling affect on our ability to collect [intelligence] against a top priority target. In another, a spate of media reports cost us several promising counterterrorism and counter-proliferation assets. Sources not even involved in the operation that was exposed lost confidence that their relationship with us could be kept secret and so they stopped reporting.
. . . On their own, journalists often simply don’t have all the facts needed to make the call on whether the information can be released without harm. I’ve heard some justify a release based on their view of the sensitivity of their story’s content with no understanding of the effect the release may have on the intelligence source at the heart of the story. . . [W]he the media claims an oversight role on clandestine operations, it moves that clandestine operation into an arena where we cannot clarify, we cannot explain, we cannot defend our actions without doing even further damage to our national security.

It’s important–as I say this, it’s important to bear in mind that my agency is subject to another oversight mechanism that has full access to our operations and takes our security requirements into account, it’s your representatives in Congress.

George Tenet and Porter Goss, George Bush’s previous CIA directors, never said anything nearly as sustained or lucid on this vital subject–and they and we paid for their silence with an accelerating flow of leaks appearing in the media. It is unlikely that Hayden’s caution will be heeded by many in the press, least of all at the New York Times. But the issue, at least, has finally been joined in a serious way by the Bush administration.

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Fare Thee Well, Alberto Gonzales, and Good Riddance

Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.

A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.

Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.

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Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.

A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.

Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.

In making the argument in COMMENTARY for prosecution, I understood full well that the probability that the Justice Department would bring an indictment of the editors and reporters of our leading newspaper was close to nil, and I said so at the time. But at the very least, a competent and articulate Attorney General, even if he saw compelling reasons not to proceed with a prosecution, could have stood up to explain both the law and its significance in wartime. A proper and much-needed public discussion would have ensued.

Gonzales did neither. Instead, he issued a very general statement: “Our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations,” and he did not follow up with any sort of action or further explanation.

The nation was rewarded for Justice’s forbearance by the subsequent publication in the Times of details of still another highly classified counterterrorism program involving terrorist financing.

Gonzales is now gone, but it is obvious that, with respect to the NSA terrorist-surveillance program, he has left us in the worst of all possible worlds. Liberals continue to express outrage at what they regard as a mortal threat to the First Amendment. The Justice Department has let stand unrebutted the false proposition that our Constitution is incompatible with laws forbidding the media to publish vital secrets. And the press continues to feel free to publish counterterrorism secrets with abandon.

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