Surveillance Net Yields Few Suspects

Surveillance Net Yields Few Suspects

By Barton Gellman, Dafna Linzer and Carol D. Leonnig
Washington Post Staff Writers
Sunday, February 5, 2006; A01

"Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use."

Does this mean that President Bush lied to us when he stated, on several occasions, that this program is a "vital tool" in preventing terrorist activities? Or does it mean that President Bush, Vice President Cheney, Secretary Rice, Secretary Rumsfeld, Attorney General Gonzalez (and former AG Ashcroft), all of the staff and directors of the various intelligence agencies, the director of the FBI, and the numerous advisors to the president are really incompetent in the areas of intelligence and homeland security? As I pointed out in previous writings, it would be hard to imagine that all of these people and agencies are incompetent. That leads us to only one conclusion: someone is lying to us... and if that is true, then somone is involved in a criminal conspiracy to use government resources to spy on us and violate the Constitution.

"Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no."

It has been contended by those of us that have some security and surveillance experience that this domestic surveillance program is casting an unnecessarily wide net that is not yielding the results sought, while violating the principles of the 1st, 4th, 5th, 9th, 10th and 14th Amendments of the Constitution. The old saying is that the "proof is in the pudding," meaning that what is yielded by an effort is one measure of a program's success. We are requiring in inordinate amount of FBI and other federal agency manpower and yielding next to nothing. All of the evidence points to the failure of these measures. The Bush administration has painted this program as being absolutely necessary while the evidence points to it as being absolutely useless and an unnecessary invasion of privacy and civil rights.

"Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause."

Notice that this report, and the official reports of the FBI, does not say that any of these "suspect" citizens were actually involved in anything illegal or terrorist in nature, only that they aroused "enough suspicion." Citizens! Wake up! The Constitution requires a standard of "probable cause," which is not the same as suspicion.

We have seen this standard of suspicion work before in our history. The Salem Witch Trials in the 1600s were all based upon "suspicion" and we know how that one turned out. During WWII thousands of Japanese-Americans--almost all of them innocent of any wrong doing, spying or criminal activities--were rounded up and deprived of their property and liberty. That was determined by the Courts to be wrong, unlawful and a violation of the Constitution. Then we had the antics of Joseph McCarthy in the senate and the House Committee on un-American Activities, where even Army Chief of Staff, General George C. Marshall was accused of treason and communist affiliation. McCarthyism took hold of our nation for over 2 years and produced nothing but paranoia and mistrust. Then we had the Watergate scandal during the Nixon administration where illegal wiretapping was so prevalent that congress passed several laws that prohibited such actions without probable cause and rigid criteria for electronic surveillance... laws that the Bush administration has violated in at least 5000 incidents.

"The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000."

In refusing to disclose this information, the Bush administration is violating the National Security Act that requires it to report and fully disclose to the intlligence committees and leadership of both houses of congress. The question that we must ask is whether or not one of us is among those thousands?

Personally, I have friends that are Muslim and living in places like Bahrain, Qatar, Pakistan and India, as well as in Canada. I also have friends that are Christian living in these places. Are all of my calls being monitored? Why? Have I done anything that would warrant such surveillance? Being a military veteran, and damn proud of my service to my country, I have done nothing that would compromise my country's security. My Muslim and Christian friends that are in these countries consider me to be part of their family. I know that they have done nothing wrong. Two of them are serving in the US military. There is no reason for my calls to be monitored.

"The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears."

The technology alone is too wide in its scope and net to be legal. Those of us with experience in security software know this to be the case. As a former security professional and member of the American Society for Industrial Security, I can attest to the flaws and problems that security software and technology presents.

"Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks."

There is an important issue noted in this paragraph. The government doesn't disclose how this process works. They declare that it is a matter of national security. But by not disclosing the workings--even to congress as required by the National Security Act--there is no congressional oversight, no accountability and no system of checks and balances in place. We are left to trust the Bush administration and their discretion. But we have evidence and reason to hold the Bush administration's discretion suspect, given the number of scandals coming out of the White House, including the leaking of the identity of a CIA operative.

"The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable. Other officials said the disclosures might shift the terms of public debate, altering perceptions about the balance between privacy lost and security gained."

EXACTLY! The process, the technology and the results are unreliable. That makes the searches unreasonable.

"Air Force Gen. Michael V. Hayden, the nation's second-ranking intelligence officer, acknowledged in a news briefing last month that eavesdroppers "have to go down some blind alleys to find the tips that pay off." Other officials, nearly all of whom spoke on the condition of anonymity because they are not permitted to discuss the program, said the prevalence of false leads is especially pronounced when U.S. citizens or residents are surveilled. No intelligence agency, they said, believes that "terrorist . . . operatives inside our country," as Bush described the surveillance targets, number anywhere near the thousands who have been subject to eavesdropping."

Again, we must question the soundness of pursuing these methods of surveillance. They have not proven effective, but are clearly inappropriate and unconstitutional.

"The Bush administration declined to address the washout rate or answer any other question for this article about the policies and operations of its warrantless eavesdropping."

The current mantra of the Bush administration is secrecy and executive privilege. By singing this song and dancing this dance the Bush administration has declined to release even unclassified public documents, photos and information, which is in violation of congressional subpoena and FOIA requirements.

"Vice President Cheney has made the administration's strongest claim about the program's intelligence value, telling CNN in December that eavesdropping without warrants "has saved thousands of lives." Asked about that Thursday, Hayden told senators he "cannot personally estimate" such a figure but that the program supplied information "that would not otherwise have been available." FBI Director Robert S. Mueller III said at the same hearing that the information helped identify "individuals who were providing material support to terrorists.""

Proving that Cheney is in on the deal. He is an active participant in the process. So when we go toward impeachment, we need to take Cheney and several others in the administration through the process as well.

"Supporters speaking unofficially said the program is designed to warn of unexpected threats, and they argued that success cannot be measured by the number of suspects it confirms. Even unwitting Americans, they said, can take part in communications -- arranging a car rental, for example, without knowing its purpose -- that supply "indications and warnings" of an attack. Contributors to the technology said it is a triumph for artificial intelligence if a fraction of 1 percent of the computer-flagged conversations guide human analysts to meaningful leads."

A fraction of 1 percent? But how many phone calls are screened and reviewed to generate that fraction? And how many of those have yielded actual leads to actual terrorist activity? NONE!

"Those arguments point to a conflict between the program's operational aims and the legal and political limits described by the president and his advisers. For purposes of threat detection, officials said, the analysis of a telephone call is indifferent to whether an American is on the line. Since Sept. 11, 2001, a former CIA official said, "there is a lot of discussion" among analysts "that we shouldn't be dividing Americans and foreigners, but terrorists and non-terrorists." But under the Constitution, and in the Bush administration's portrait of its warrantless eavesdropping, the distinction is fundamental."

In other words, something between the statements of the administration and the actual facts doesn't jibe. Is it a lie or incomptence?

"Valuable information remains valuable even if it comes from one in a thousand intercepts. But government officials and lawyers said the ratio of success to failure matters greatly when eavesdropping subjects are Americans or U.S. visitors with constitutional protection. The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least." Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA."

We can clearly see that this approach fails the standard of probable cause and established evidentiary standards.

"Michael J. Woods, who was chief of the FBI's national security law unit until 2002, said in an e-mail interview that even using the lesser standard of a "reasonable basis" requires evidence "that would lead a prudent, appropriately experienced person" to believe the American is a terrorist agent. If a factor returned "a large number of false positives, I would have to conclude that the factor is not a sufficiently reliable indicator and thus would carry less (or no) weight.""

We can clearly see that this approach fails the standard of even reasonable basis. These efforts do not even rise to the lesser standard of civil law, that being the likelihood of the case succeeding and a "preponderance of evidence"

"Bush has said his program covers only overseas calls to or from the United States and stated categorically that "we will not listen inside this country" without a warrant. Hayden said the government goes to the intelligence court when an eavesdropping subject becomes important enough to "drill down," as he put it, "to the degree that we need all communications.""

Without oversight and checks and balances, how do we know this? If the administration is deliberately bypassing the courts and congress, how do we know that they are obeying the law and protecting our rights? We don't. That in itself makes the program illegal and unconstitutional.

"Yet a special channel set up for just that purpose four years ago has gone largely unused, according to an authoritative account. Since early 2002, when the presiding judge of the federal intelligence court first learned of Bush's program, he agreed to a system in which prosecutors may apply for a domestic warrant after warrantless eavesdropping on the same person's overseas communications. The annual number of such applications, a source said, has been in the single digits."

Evidence that there is deliberate action... an essential evidentiary element in establishing the crime of conspiracy... which is a felony.

"Many features of the surveillance program remain unknown, including what becomes of the non-threatening U.S. e-mails and conversations that the NSA intercepts. Participants, according to a national security lawyer who represents one of them privately, are growing "uncomfortable with the mountain of data they have now begun to accumulate." Spokesmen for the Bush administration declined to say whether any are discarded."

Yep... no oversight, no supervision... no accountability.

"The Bush administration had incentive and capabilities for a new kind of espionage, but 23 years of law and White House policy stood in the way."

That is correct. We have laws on the books that make this program illegal.

"According to surveys by TeleGeography Inc., nearly all voice and data traffic to and from the United States now travels by fiber-optic cable. About one-third of that volume is in transit from one foreign country to another, traversing U.S. networks along its route. The traffic passes through cable landing stations, where undersea communications lines meet the East and West coasts; warehouse-size gateways where competing international carriers join their networks; and major Internet hubs known as metropolitan area ethernets."

We must understand the implications of the technology to understand how pervasive and invasive these measures really are.

"Until Bush secretly changed the rules, the government could not tap into access points on U.S. soil without a warrant to collect the "contents" of any communication "to or from a person in the United States." But the FISA law was silent on calls and e-mails that began and ended abroad."

Anything done secretly is suspect unless there are provisions for accountability. This program bypasses accountability.

We need to speak out and contact our congress critters to let them know how wrong this really is! Call a senator or representative today!