Sunday, May 18, 2008

The NSA Would Like You To Believe That Discussing Their "Activities" Puts You In Danger -- It's Not Discussing These "Activities" Which Will Do So

August 23, 2007 2:47 PM PDT
Discussing NSA surveillance kills Americans? Hogwash

Posted by Declan McCullagh

Having a free society requires being able to report on and publicly discuss what our government is doing with our tax dollars. This principle is even more important when there are allegations of wrongdoing.

Which is why it's odd to see National Intelligence Director Mike McConnell say that Americans will die because of the discussion of National Security Agency spying in public and in the U.S. Congress.

This is, unfortunately, no exaggeration. Check out this excerpt from an interview that McConnell, a former NSA director, recently gave to the El Paso Times:

Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?

A. That's what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it's a democratic process and sunshine's a good thing. We need to have the debate. The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required. So there was no warrant required for a foreign target in a foreign land. And so we are trying to get back to what was the intention of '78. Now because of the claim, counterclaim, mistrust, suspicion, the only way you could make any progress was to have this debate in an open way.

This is a bizarre statement. For it to be true, it requires that the NSA's adversaries (terrorists, I assume) be ignorant of the fact that eavesdropping occurs.

That's unlikely. The Puzzle Palace book describing the inner workings of the NSA was published in 1983. The late 1990s were consumed with online speculation about the Echelon surveillance system. CNN reported in 1997 that Osama bin Laden was worried about electronic surveillance, and the Los Angeles Times wrote a year later that the Feds intercepted calls placed by bin Laden on his Inmarsat satellite phone.

It would take a singular terrorist to be both (a) blissfully unaware of all these reports and (b) yet somehow cunning and savvy and well-funded enough to be a serious threat.

Even if such a singular terrorist existed, there are still reasons for Congress and the public to discuss NSA surveillance. The most important is that it may have been, as a Michigan federal judge has ruled, unconstitutional. Related to that point is that the officials who authorized it may have violated criminal law.

McConnell's argument is especially slippery because it relies on information that only he (presumably) knows and because it can be applied so broadly. Why wouldn't prosecuting Scooter Libby have caused the executive branch to lose focus on the "War on Terror" and therefore killed Americans? Why wouldn't criticizing President Bush embolden terrorists and therefore kill Americans?

Besides, it's a little odd that the Bush administration is so worried about Americans dying because of intelligence disclosure. It might be more seemly if top officials were more worried about Americans dying (3,723 so far) because of bad or politically manipulated secret intelligence instead.

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