Bush's nominee to replace Porter Goss as CIA director, Air Force General Michael Hayden, met with Illinois Senator Dick Durbin and his staff today.
According to Durbin, Hayden (the architect of the NSA program that spies on American citizens without warrant, judicial or congressional oversight or review) appears to favor changes in federal law that would allow judicial oversight of the program.
Hayden told him [Durbin] in a private meeting he was concerned when he set up the highly secretive program that approaching Congress could reveal tactics, techniques and procedures used by U.S. intelligence to track al Qaeda suspects.
"He said, however, that with all the publicity that's been surrounding this program, he may be closer to the possibility of asking for a change," Durbin, the Democratic whip, told reporters after meeting with Hayden for 35 minutes.
"I hope they do, and I think they're going to find bipartisan cooperation. I want to find a way to make it legal for us to be safe as a nation," he added.
The administration has said the program is legal and there is no need to change the law to accommodate it.
Then why would law have to be changed? If the program is legal as it is, then why isn't Bush following the law and going through the FISA court now?
The program allows the NSA to monitor the international phone calls and e-mails of U.S. citizens without warrants, while in pursuit of al Qaeda.No, no, no. This is a poorly written column. The writer inaccurately describes what the program does. The program enables the NSA to monitor ALL phone calls and emails of U.S. citizens, foreign and domestic, without warrants, anytime. In targeting the communications between suspected Al Qaeda members, the program doesn't discriminate - the program taps ALL electronic communications, foreign and domestic.
If you haven't read James Risen's book, State of War: State of War : The Secret History of the C.I.A. and the Bush Administration, you should. Because although it's the part that's gotten the most media play, in my opinion it's only a portion of what Risen reports that should trouble constant Americans. In the book, Risen describes how telecommunications' technology changed in recent decades and has made U.S. networks the carriers of lots of international phone and email traffic:
In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.The NSA has forwarded information, non-terrorism related, to other U.S. agencies that it's mined from intercepted communications, but may be criminal.
In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.
But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air.
The existence of the Program has been kept so secret that senior Bush administration officials have gone to great lengths to hide the origins of the intelligence it gathers. When the NSA finds potentially useful intelligence in the U.S.-based telecommunications switches, it is "laundered" before it is widely distributed to case officers at the CIA or special agents of the FBI, officials said. Reports are said not to identify that the intelligence came from intercepts of U.S.-based telecommunications.
Bush administration officials offer conflicting information about whether intelligence gathered from the warrantless wiretaps is being used in criminal cases inside the U.S. One senior administration official insisted that it never has been used in a criminal trial, but other top officials argued that the eavesdropping program has proved valable in domestic terrorism investigations. Actually, both statements may be true. It appears that the NSA wiretaps are being used to identify suspects in the United States. But because the intelligence based on the warrantless wiretaps would almost certainly not be admissible in an American court, it is possible that the Bush administration is not attempting to take those cases to trial. Several high-profile terrorism-related cases since 9/11 have ended in plea bargains and out-of-court settlements; few have actually gone to trial. One reason for that legal strategy may be that the administration is fearful of getting caught conducting illegal surveillance operations.
The government has a number of ways to cover up the NSA's role in the domestic surveillance of people inside the U.S. In some instances, the government seeks FISA court approval for wiretaps on individuals who have already been secretly subjected to warrantless eavesdropping by the NSA.
The Bush administration justifies that procedure by saying that the government obtains search warrants if it wants to eavesdrop on the purely domestic telephone calls - between two phones inside the U.S. - of the individuals under surveillance through the NSA program. Since the NSA is supposed to focus on international "transit traffic" and telephone calls and email messages between someone in the U.S. and someone overseas, government officials say that they seek FISA warrants when they decide to go further to monitor all of the communications of an individual suspect.
But that process of obtaining a search warrant is clearly tainted. The Bush admionistration is obtaining FISA court approval for wiretaps at least in part on the basis of information gathered from the earlier warrantless eavesdropping. The government is apparently following that practice with increasing frequency; by the estimate of two lawyers, some 10 percent to 20 percent of the search warrants issued by the secret FISA court now grow out of information generated by the NSA's domestic surveillance program.
If this program continues to operate, in any form, the U.S.A., this grand and noble experiment, is over. Americans' rights have been compromised over the years. As new threats have emerged to present challenges to our Constitutionally guaranteed rights, we've taken the road of least resistance, bent to the will of the most fearful among us, and allowed the state to invade more of our privacy. But how far can we bend and not break? The assault by this President on Americans' 4th amendment rights is basic to our identity as a free people. If this President is allowed to continue to break the law and disregard our rights, the covenant is broken.
Durbin spokesman Joe Shoemaker said Hayden expressed a willingness to consider legislation that would put the NSA program "as it exists now" under federal law.
"What the people in the room felt he was trying to say was that they want to continue using sources and methods they're using now and would be willing to have that program, structured much the way it is now, reviewed by a judge," Shoemaker said.
General Hayden would be willing to, would he? It's nice to know that in our democratic government, where the people decide what laws they will live by, a member of the military (an employee), would be "willing" to obey law. If the law is changed to what he thinks it should be.
THAT'S why you don't want the military running the CIA, a civilian agency. That's why you especially don't want to trust THAT member of the military with access to American citizens' most private information.
[I swear, I don't see a dime.]
Filed under: Bush, Dick Durbin, Michael Hayden, CIA, FISA, NSA, 4th amendment, warrantless wiretaps, James Risen