Agam's Gecko
Sunday, December 25, 2005


ou think I'm joking? This is what the latest kerfuffle over the Bush administration's so-called "eavesdropping" on international communications amounts to. If they catch people engaged in organising or planning an attack, everyone will praise them. Well, maybe not everybody... But if a terrorist's civil rights to privacy are infringed in the process, well, it's just not worth it (according to the critics).

I don't get it. Can Americans agree or not, that there's a war going on? It certainly appears not. Apparently for roughly half the population (or at least, half the population of pundits), the present struggle against the fascist Islamism movement is simply a figment of the President's imagination or something. It's not real anymore -- a function of the passage of four years without another successful al Qaeda atrocity on the home front. Some might recognise this as a success; for others, it's like the snooze button on an alarm clock. No need to get up just quite yet, go back to sleep for a while. The Busheviks are not allowed any successes, so the lack of al Qaeda success in this area must be due to something else. Maybe they just simply stopped wanting to kill us, or maybe the whole thing was just all trumped up to start with. I heard a caller to Washington Journal yesterday claim that Sept. 11 was simply an excuse for the Bush neo-cons to invade Iraq, which is all they ever wanted anyway. Talk about short and faulty memories!

I have to admit, before going any further, that I stole the idea for this article's title from Walid Phares, writing last week in The Counterterrorism Blog: "Catch them, but do not watch them!.." Dr. Phares recounts his momentary confusion in reading the early wire service reports of these intelligence leaks. He thought the Associated Press was pushing criticism of President Bush for not doing enough surveillance of terror-related activities, only to realise it was precisely the opposite -- he was doing too much. He was surveilling Americans, crushing their civil liberties, breaking the law and (as we would learn later from the likes of Sen. Boxer) performing numerous impeachable offenses.
Reading and listening to the surreal new debate, I thought of how al-Qaeda must be laughing. In one of his caves in middle earth, Osama bin Laden and Ayman Zawahiri must be in disbelief, yelling, "By Allah, had we known we were barely monitored; we could have pulled out the big one!"
And now we find out that the Bushies have been conducting domestic radiation checks without a warrant. Oh, the outrage! Whatever next? King George has really gone too far this time...

In a way, the criticism over this mirrors the "foreign fighters" issue. Why should terrorists, who fight for no country, who wear no recognisable uniform, who don't carry their weapons openly, and who certainly haven't signed on to any international treaties (much less adhere to any Geneva Conventions), expect to be granted Geneva Convention rights? Where's the incentive for anyone else to follow such international conventions in any conflict, if the terrorist thug with his backpack bomb headed for the subway (or his supply of aerosolised ricin, anthrax or... use your imagination) is going to have the exact same rights and privileges? Captured soldiers of Saddam's military were not dealt with in the same way as Abu Musab al Zarqawi's throat-slitting murderers -- and there's a reason for that.

In the same way that demands are made for terrorists to be granted all rights and privileges of a legitimate military (more in fact -- I know of no comparable case of domestic, civilian judicial oversight over prisoners of war during conflict), more demands are now made that such terrorists (or suspected terrorists and their enablers) should be granted the full constitutional protection of civil liberties! These people have declared war on you, folks; this isn't a simple law enforcement exercise.

I read the other day of a European court proceeding, in which it was argued that infringing on a Muslim's right to carry out "jihad" (however he personally defines it for himself), is essentially an infringement on his religious freedom -- "jihad" being one of the five pillars of Islam, and therefore a requirement of all Muslims. Well, they're said to be pretty socially advanced over there in Yurp, so watch for similar arguments coming soon to a courthouse near you.

Dr. Phares again:
Were the terrorists communicating among each other in the 1990s, and was the U.S. government able to detect them and disrupt their operations before 9/11? Obviously the terrorists of Mohammed Atta and their colleagues were free to communicate, even meet on U.S. soil for years. There was no War on Terror in the Clinton administration, no advice that a jihad was happening in the research of most of academia, and no court was instructed to indict Islamo-fascism before September 11, 2001. Presidents didn't even need to develop techniques to monitor jihadists, since no doctrine on jihad was taught in military colleges. The country was on a different planet.

But Osama bin Laden changed the rules of engagement four years ago. The geopolitical reality changed, and laws had to serve the survival of Americans not to obstruct their global freedoms. Many questions are still being asked by the experts on terrorism: Are we fully prepared for them? Is our legal system, even when best interpreted ready to meet them? Apparently not: We are in a twilight zone. The Bush administration, inheriting a pre-9/11 legal system, is struggling to balance between civil liberties and terror. But its critics haven't moved past September 10th: They want to use a system designed against the mafia to play with the most lethal forces of the globe.
From what I understand, this surveillance program is less like "wiretapping" and more like "data-mining." The warrantless "searches" of communications were cases in which "dirty phone numbers" within the US -- acquired from the contacts of known terror operatives through the seizure of computers and cell phones, each of which could yield thousands of leads that must be followed -- were contacted from abroad, or where a "dirty number" abroad was contacted from the US. In the first scenario, as long as the investigation is for purposes of foreign intelligence work (basically, as long as it isn't for domestic law enforcement purposes), no warrant has ever been needed. No matter if it was an American citizen on one end of the line, either the foreign end or the US end. As long as the communication originated from abroad, it could be legally collected, filtered or whatever they do with it. Yet the exact same communication between the same two people, if it originated in the US by whomever (citizen, non-citizen, it doesn't matter) was out of bounds.

It seems fundamentally reasonable to me that if a particular communication between two points, one inside the country and one outside it, would be deemed important for an investigation into international terror networks, it shouldn't matter in the least which direction the call is made. If it involves the same two people, or at least the same two communication devices, the material is (potentially) equally crucial. It was a hole in the system which investigators needed to be filled, and the administration tried to bridge that gap. And they followed the required procedures to do so, informing congressional oversight committee leaders of both parties as a part of that procedure. This makes the horrified cries of shock all the more ridiculous, when at least half a dozen esteemed members of the opposition party knew about this long ago. And the strained whining that "Bush is spying us all," is even more pathetic -- demonstrably false paranoia, at best -- and even worse than the whole library card / Patriot Act thing. Dig into that a little and find out how much it's ever been used... I dare ya!

Well, at least it rhymes -- which is an important thing for constructing catchphrases. President Bush, the "Liar in Chief" can now be the "Spy-er in Chief" as well. I look forward to hearing the ditties, they'll fit neatly on handcrafted organic placards for the next ANSWER Coalition rallies. "Bush Lied to Us, Bush Spied on Us, No Blood for Oil!" Cha cha cha...

I'm curious though, how soon will the devoted defenders of the CIA begin demanding criminal investigations into these intelligence leaks. You know, the folks who were outraged that we should actually know who Valerie Plame is, who her husband is, and that she worked at a desk there at the formerly evil CIA. Remember "Fitzmas" and all the wonderful presents St. Patrick was expected to bring, chiefly that certain people would be "frogmarched" off to jail for the serious damage they "caused" to national security? While there isn't the slightest evidence that Val's name has had any effect whatever on that score, it's certain that the current set of intelligence leaks have seriously damaged security efforts -- both by effectively shutting down a key part of the composite set of tools, and by blowing a lot more of it around in the public sphere such that our enemies know a hell of a lot more about the techniques (and thus, how to route around them) than they did ten days ago. Thanks a lot New York Times, and that leaky, mutinous ship sometimes known as the national intelligence aparatus. Seems like a lot of those sailors are seriously afflicted with Bush Derangement Syndrome, which, once it sets in, appears in most cases to be completely incurable. Some of these insider leakmasters must still be stuck in a Vietnam War era mindset.... they feel they must destroy the country in order to save it from King Bush.

Back to Walid Phares one last time:
Meanwhile, al-Qaeda is learning more about our system -- not about the fact that the U.S. government has been monitoring them, but how little it has done and how easy it is to attack these measures within the U.S. system. The terrorists in charge of penetrating U.S. national security are better off this week than last. They would have learned how many times the president has authorized exceptional surveillance; they would have understood why the pressure was higher on terror between 2001 and 2005; and above all they would have realized that politicians in America (and their academic advisors) are detached from the reality of the post-9/11 world.

Al-Qaeda knew it was under surveillance in America, but it didn't know much about that system. Soon, it will know and will use this knowledge to its advantage. While some among us are rotating their pre-9/11 planet back in time, future jihad is railing against another of its enemies' fatal weaknesses.
I hope we see criminal charges in the new year over these stupid leaks. And I don't write that out of hoping for "presents" or "frogmarches" that would enable "me" or "us" to crow about the downfall of those we feel are stupid and/or dangerous. I don't want to say "I told you so" or "Ha! I'm right and they're evil, and now they'll pay." That kind of stuff is fine for the Kos Kiddiez and their like, for most of whom it's all just a game of gotcha anyway. I wish I could be wrong, and there was no damage to the struggle. But I don't think so; the damage is already quite plain and obvious if one just looks at the past week of news reporting.

Emily Francona is a retired US intel officer, and formerly a staff member on the U.S. Senate Select Committee on Intelligence. She opened a new blog on intelligence issues just last week, called Intelligence Perspectives and guess what she started writing about? NSA: Domestic communications intercepts:
The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA's internal Inspector General and/or the Intelligence Community's Inspector General. If the internal oversight process proved insufficient, legislative oversight would have been the next logical place for these officials to take their concerns: congressional oversight committees routinely investigate just those types of concerns in a legal setting designed to preserve classified national security information. Should following this well-established process still not satisfy their concerns, the honorably (sic) course of action for any true intelligence professional is to resign from such an untenable position - WITHOUT revealing classified information and potentially damaging national security.

These "concerned" officials have acted extremely unprofessionally: they clearly violated their secrecy oath and the provisions of the 1980 Classified Information Procedures Act by providing classified information to the media. While it may come as a shock to some, the media is NOT entitled to classified information under any circumstances.
I do hope that Emily keeps writing, she's received a lot of attention from just the single post (so far) on her site. I found it via both Belmont Club and protein wisdom (wai to Richard and Jeff, who've both written some great stuff on the topic). See also PJ's brief round up from all sides at mid-week.

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