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December 16, 2005
NSA Snoops And PATRIOT Acts = 4 Years Of No Attacks?

Many in the blogosphere have commented on the two big stories of the day -- the New York Times revelation of the NSA operation to conduct warrantless wiretaps on international communications, and the filibustering of the extension of the Patriot Act. I have read the Times article in depth and read some of the commentary on the leak, including the Power Line demand that the leak get treated the same as the Valerie Plame fiasco-in-progress. I predicted the PATRIOT Act filibuster earlier this week, and considering this new story, am not surprised in the least to see it succeed.

Let's review what the Times has to say on their big scoop, on which they sat until the day after the Iraqi elections:

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches. ...

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said. ...

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.

One has to bounce around the article to put this together, in typical NYT fashion, but the core of the issue is this: the NSA and the administration defined international communications as including those where one end -- and one end only -- occurs in the US. Anything else still requires a warrant, as the Times acknowledges. Moreover, this effort did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.

And the program paid off. Information developed during the NSA effort kept al-Qaeda from destroying the Brooklyn Bridge in 2003 when Iyman Faris got captured before he could initiate the attack. He pled guilty to terror-related charges and is now serving a long prison sentence for his part in the conspiracy. If one reads further into the long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

While the White House played offense in Afghanistan and Iraq in the forward strategy against al-Qaeda terrorists -- in the latter country, we have squared off against the AQ first team for at least two years now -- this proves that the American government has not neglected its defense. It has deployed all of the assets at its hands to keep the terrorists from gaining a toehold inside the US as much as possible to do so. The use of wiretaps against the tech-savvy Islamist terror groups has apparently not only kept them from effectively coordinating for attacks, but it has also led to the discovery and exploitation of unknown AQ and other resources, which led to other domino-style discoveries.

It shows that the four years of attack-free life that Americans have enjoyed since 9/11 was no accident, but the fruits of hard work and delicate intelligence service by dedicated men and women. And now the question is whether that defense has been hopelessly compromised by the NYT leak and publication, as well as the PATRIOT Act filibuster.

After carefully reading through the story, I would say that the revelation of the NSA program doesn't damage our defense nearly as much as a reversal on PATRIOT might, and that hasn't yet happened. In fact, it could serve us well to have this debate now, four years out from 9/11 and outside the pressure of a presidential election during a second term which means that the current administration does not have a stake in a re-election campaign. But let's be clear about the stakes involved in this debate: does the Constitution allow the United States to take the necessary actions to defend itself against asymmetrical warfare without unduly curtailing individual liberties? Does the Constitution require us to sacrifice thousands, perhaps millions, of our citizens to murderers and infiltrators simply because we might not like the idea of international communications being subject to random monitoring?

I would argue that it does not -- and the professional way that the Bush administration handled the NSA program demonstrates that perfectly well. The White House engaged the leadership of both political parties and made partners of the other two branches of government to make this a success. It kept the operation secret as long as possible, it did not use the data to abuse the citizens of the US for any reason; it conducted its operations within the letter of the law, although perhaps outside the spirit that some see it containing. It succeeded at the balancing act required of it, and they deserve great credit in their administration of the project.

I share the mistrust of big government and its power to spy on their own people. One only needs to see the example of the Mukhabarat in Saddam's Iraq to understand that, or for that matter, review some of the more distasteful COINTELPROs of the Hoover dynasty at the FBI. The Times account does not even hint at that kind of corruption and revolting abuse of power at the NSA, but instead a fixed eye on the legal lines and the focus on true national security. People have every right to be nervous about the necessary tactics for defending the nation during this time of war -- but they have the responsibility to give the evidence of the operation a mature evaluation.

In those terms, with my wife, son, daughter-in-law, and granddaughter still alive along with the 300 million Americans that Islamofascists have wanted to kill in massive numbers for the past four years and more, I'd say we have struck the right balance between security and liberty for these circumstances. Those who want to strip us of all defenses out of an overstretched notion of the Fourth Amendment should remember that without security, civil liberties do not exist at all.

Addendum: Please see postings at various blogs such as Hugh Hewitt, Michelle Malkin, the threads on The Corner, and numerous links and excellent original commentary at Instapundit as well. I had to save this in stages in order to make sure my virus program updates didn't eat my work, so if you've seen the (cont) note earlier, you know what I was doing ...

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Posted by Ed Morrissey at December 16, 2005 9:15 PM

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