We’ve gotten a number of emails like this one:
OK, geniuses. One more time. How does disclosing that the Bush mob is using warrant less secret surveillance instead of secret surveillance based on a FISA warrant, which the entire world knows has been used since 1978, compromise national security?
And this one:
Since you seem so interested in whether the NYTimes broke the law maybe you can accept Atrios’ challenge and explain how letting the public know that the government was conducting secret surveillance without a warrant instead of following the law which allows them to conduct secret surveillance with a secret warrant damages national security.
I’m no expert on what terrorists do and do not know about our surveillance techniques, but there are a couple of obvious points to be made. First, there is apparently no dispute about the fact that when it was published in the American press that we were listening in on Osama bin Laden’s cell phone conversations, he either stopped using cell phones or switched to a different technology. I would have thought it was obvious that we could intercept cell phone communications, but apparently it wasn’t obvious to bin Laden. In this case, I think it’s entirely possible that the terrorists didn’t realize that we were intercepting their communications with supporters in America. If they didn’t, the disclosure obviously would be damaging to our security.
These emailers assume that al Qaeda members know about FISA. I think that is extremely unlikely. Very few Americans knew anything about FISA before the current controversy arose. But let’s assume that al Qaeda is well enough versed in American law to know that the administration could obtain a warrant under FISA authorizing interception of their communications with people in the U. S. Let’s also assume that, like our newspaper editors and reporters, they are not well enough versed in American law to know that federal courts have ruled, at least five times, that the President can order such surveillance without Congressional authorization. In that case, the leaks could be very important to the terrorists, for this reason: If we capture a terrorist with a cell phone or computer, his confederates will continue calling his cell phone and sending him emails until they realize that he has been captured. That is likely to happen within a matter of days, and perhaps hours.
If the terrorists did know about FISA, they probably also knew that it would take days, weeks or months to obtain a FISA order. Thus, while they probably would be smart enough to realize that the cell phones they had used to try to contact their confederate were compromised and should be discarded, they would not realize that we had the ability to begin intercepting messages coming in to the captured cell phone almost immediately, and then begin intercepting messages to and from the phones that were calling the terrorist, also almost immediately. I would guess that a number of terrorists have been captured precisely because they did not realize how quickly we can follow up on the intelligence we gain, and roll up a terrorist cell.
Of course, these are just my offhand thoughts as an amateur. I imagine that the counter-terrorism officials who are irate over the leaks could explain far better than I why they have damaged our security. But then, giving the explanation would likely only compound the problem.
UPDATE: A reader writes:
The damage caused by the NSA intercept case can be better understood by describing the technology involved.
As an introduction, my company produces software for securing high value electronic assets for major banks. Our clients include some of the largest financial institutions in the world. In short, we thoroughly understand electronic security. The NSA program that captures electronic communication appears from all descriptions to have some very significant features previously not disclosed to the public.
First, the communications involved (email and phone) very likely used encrypted channels. Digital cell phones encrypt communications before transmission. Many email programs offer simple encryption options as do PDF files and the like. For many years, the security community has suspected the NSA had “backdoors” into commonly used encryption protocols. These standards include familiar technical terms, such as “SSL” browser security. The recent disclosures publicly (and loudly) confirm the NSA’s highly effective code-breaking technology. An article from 2003 describes the possibility as “theoretical”. http://www.newscientist.com/article.ns?id=dn4130. By disclosing the insecure protocols, the Times simply tipped the enemy to switch protocols.
Second, the intercepts appear to have been supported by US infrastructure and telecommunications firms. Telephone companies (and Internet firms) use digital switching equipment (e.g. routers) to move bits across various networks. Were the NSA to have access to the underlying data stream from multiple Internet and long distance firms, it would have access to every piece of data streaming across the fiber optic cable and could “narrow” the search by filtering based on IP address or phone number. From now on the enemy will consider US telephone and Internet channels insecure under all conditions.
As we have seen in the past, the enemy adapts to sophisticated information gathering techniques. From a purely technical standpoint, this disclosure represents a significant disclosure of the tools, capabilities and methods of the NSA’s information gathering programs. If the breaking of the Japanese and German codes during WWII were published in the New York Times during the war, it would have devastated the American ability to intercept enemy communications. It would also have been treason.
UPDATE: Reader Pat Slattery adds:
Do you really think that ANY explanation would satisfy Atrios or his chronies? The president already said that the reason for bypassing FISA was speed. Any number of people have explained in depth how doing that is legal. The president also used the Bin Laden example. I would think that, to most people, exposing publicly that the NSA is intercepting those calls so obviously damages security that further explanation is unneccessary. “The enemy didn’t know we were doing something, now they do.” Kind of a no brainer. How do we know that they weren’t 100% hip to what we were doing? They were still making the CALLS! Now, they won’t. We can hope they’re too dumb or ignorant to fully understand what the NSA is doing and will continue to make the calls, but we know they were making the calls before they knew about the NSA program and chances are they’ll adapt.
So much of what the far left argues seems to me to come out of willful ignorance that I have stopped trying to debate or explain anything to them. When you confront people who willfully ignore the facts, you can’t persuade them with the facts. It is obvious that the terrorists didn’t know what the NSA was doing, evidenced by the fact that they were making calls and the NSA program was intercepting them, and it is equally obvious that letting them know we were intercepting them (with speed and agility that is far beyond what they could have expected if they did know and understand FISA) causes us to lose that advantage. Only the willfully ignorant would question why that would damage security.
Oh… and you guys are geniuses!
THE LAST WORD, positively: An emailer makes a point I can’t argue with. If the al Qaeda terrorists are close students of American constitutional law, then they know about the Clay, Butenko, Buck, Truong and Duggan cases, which all say the President has the inherent constitutional authority to carry out warrantless intercepts for foreign intelligence purposes; so the news that the NSA is carrying out warrantless searches, as opposed to searches using FISA orders, should not be a surprise to them. Touche.
I guess this shows the foolishness of trying to respond to the “Hatrios challenge” on its own silly terms. The administration, of course, has not complained that the New York Times damaged our security by revealing that the NSA is carrying out warrantless interception of communications between al Qaeda members overseas and people in the U.S.; the complaint is that the Times disclosed that the NSA is carrying out such interceptions at all. And, as many emailers have noted, the fact that the terrorists were unaware of the program is demonstrated by the fact that such calls were being made and intercepted.
OK, JUST ONE MORE THING: We’ve been getting emails from liberals who seem to think that the 72-hour provision of FISA makes the problem of speed disappear. I did a separate post on that issue above, titled “72 Hours: Who Could Ask For More?” I will say, briefly, that anyone who thinks that not only preparing an extensive application ab initio, but actually getting an order signed by a federal judge within 72 hours, is easy, is a person who has never practiced law in the federal courts.