May 11, 2006

Excavating For Bones of a Scandal

Hatched by Dafydd

The scandal du jour is that the National Security Agency (NSA) has evidently been data-mining records of phone calls, which has every Democrat and a few hand-wringing Republicans in an uproar. (And does anyone doubt that USA Today chose yesterday, of all days, to release their original story in an effort to torpedo the nomination of Gen. Michael Hayden to head up the CIA?)

Alas, but hardly unexpectedly, many medioids and politicians appear to be conflating this story with the unrelated NSA al-Qaeda intercept story (Reuters most obviously, which I'll highlight below). But I'm way ahead of myself; let's first describe what is actually going on, assuming USAToday can be believed.

Journalistic archeology

The first point to make is that this is not a new story. The New York Times first published a story about this back in December, 2005, just a week after the NSA al-Qaeda intercept program was blown. It is thus quite clear that the USA Today story is recycled old scandal-mongering from last year... and the only NSA-related story recently that could have sparked this renewed interest is (quite obviously) the nomination of Gen. Hayden. From the December NYT story:

Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

Sounds strangely familiar, yes? This is clearly the exact, same story as the one USA Today "broke" yesterday. Nowhere does yesterday's USA Today article divulge that the Times scooped them by four and a half months, and neither AP nor Reuters seems to be able to remember back that far.

Today's Times story credits USA Today with the story in paragraph two; but it does not mention that this is old stuff, long ago reported by the Times itself, until the twelfth paragraph. Even then, it mentions its own earlier story in such an oblique, laconic fashion -- followed by a lurid charge supported only by Mr. Anonymous -- that readers could easily be excused for missing the point that this is old, dessicated outrage:

The New York Times reported last December that the agency had gathered data from phone and e-mail traffic with the cooperation of several major telecommunications companies.

But Democrats reacted angrily to the USA Today article and its description of the program's vast size, including an assertion by one unnamed source that its goal was the creation of a database of every phone call ever made within the United States' borders.

(I find it more than a little surprising that the Times would be more interested in pushing this as Today's scandal than claiming their own primacy from yesteryear. But then, there is the urgent task of preventing George W. Bush from naming a new CIA chief... at least, anyone other than, oh, Francis Fargo Townsend -- whom I discussed in dire, sepulchral tones, and not without some boxing about the ears, some months ago on Captain's Quarters.)

So with all this as prelude, what exactly is the NSA doing? What's the hoo-hah all about?

How it works

The Times (today's) has a succinct description:

The article, in USA Today, said that the agency did not listen to the calls, but secretly obtained information on numbers dialed by "tens of millions of Americans" and used it for "data mining" — computer analysis of large amounts of information for clues or patterns to terrorist activity.... [The quotation "tens of millions" is from Patrick Leahy. -- the Mgt.]

"It's not a wiretapping program, it's simply a compilation, according to the report here, of numbers that phone companies maintain," said Senator Jeff Sessions of Alabama, who is also on the judiciary panel.

He compared it to "mail covers" and "pen registers," techniques long used by law-enforcement authorities to record the addresses on letters or calls made by individuals under investigation. No warrant is needed for such efforts, but the government must certify with a court that the information likely to be obtained is relevant to an ongoing investigation....

The Times article disclosing the data mining program last December quoted officials in the government and the telecommunications industry who have knowledge of parts of the program as saying the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

So the discussion is not about "surveillance," it's about traffic analysis; and it has nothing to do with the al-Qaeda intercept program -- except that both are conducted by the NSA and the administration argues (and caselaw seems to agree) that neither requires a court order.

But note how the antique media conflate the two cases, either foolishly or with malice aforethought. Reuters has the clearest example:

Bush said last year the eavesdropping only targeted communications between a person inside the United States and a person overseas. But USA Today said calls originating and terminating within the United States had also been included in the database.

Note the 'Bush said, but we've discovered' formula here, designed to make it appear as though Bush has been caught out in a lie. In fact, the president said that the eavesdropping was only on international calls; this is a completely different program that doesn't include any eavesdropping at all.

So Bush is telling the truth, and it's Reuters who is indirectly lying -- or else acting in reckless disregard for the truth. The other media articles I read more or less conflated the two "scandals" as well (it's a scandal we weren't doing them before 9/11), though more subtlely.

Why it works

I would guess that the NSA notes suspicious surges of traffic: for example, suppose there is a bulge of phone calls from all over the country to some obscure number in Afghanistan... and then the calls abruptly cease. Two days later, there is some major al-Qaeda attack in Afghanistan or Packistan. If I were a judge, I think that would be probable cause for me to issue a warrant to let the CIA or FBI find out who owns the telephone numbers that called Afghanistan just before the bombing, particularly if the NSA could demonstrate that this same pattern had happened before.

What is the point? If indeed various people not previously of interest to lawn forcement were consistently calling suspected al-Qaeda affilliates shortly before attacks, they may well be al-Qaeda agents here in the United States: under the al-Qaeda intercept program, their calls could be tapped.

But what about purely domestic? Suppose there were a major al-Qaeda attack somewhere in the world. It might be very valuable to backtrack through the record to find any calls made to some Islamic charity -- even if America-based -- that's linked to the group that carried out the attack, looking for calls that didn't fit the usual pattern: for example, a large burst of calls from specific (domestic) numbers just a week before the attack. Then you'd want to backtrack on those numbers, perhaps finding a similar bulge in telephone traffic to the first numbers from a small number of other domestic phone numbers.

Finally, you might find that the second group of domestic numbers got a number of calls from the city where the attack took place. Again, if I'm a judge, that's certainly good enough for me to issue a warrant, for those domestic numbers can certainly be reasonably suspected of being in the al-Qaeda daisy chain.

Bear in mind that these databases of phone calls already exist; the NSA just wants to consolidate them in an NSA database. This makes the search a matter of moments, rather than days or even weeks, as they try to figure out which carrier each call uses and subpoena the records from that carrier for that specific number.

There are some civil-liberties concerns; with all those numbers at their fingerends, it's possible the NSA might go romping through them, just "for the heck of it" (Leahy's words), including numbers that show no unusual traffic. But why? Why would they waste their time and resources? In any event, without showing some rational reason for having done so, they certainly couldn't produce any such findings in court.

I suppose the Democrats are frantic that the administration will somehow use this database to round up all Democratic dissidents and throw them into Gitmo. But that seems even more farfetched than the nutty claims by conspiracy theorists that Bill Clinton was systematically assassinating anyone who had evidence against him.

Democratic eruptions

Another difference: only wackos ever waved around the "Clinton death list;" but the equally insane conspiracy mongering against President Bush has gone mainstream. From today's Times:

"Are you telling me that tens of millions of Americans are involved with Al Qaeda?" Senator Patrick J. Leahy of Vermont, the committee's ranking minority member, asked angrily. [Asked who? The empty air? The Senate J-Com hasn't called any witnesses on this allegation, so far as the Times reports.]

Like Mr. Specter, Mr. Leahy made a link between the new charge and the administration's refusal to answer the many of the committee's questions about the security agency's warrantless wiretaps of calls between the United States and overseas in which one person is suspected of terrorist ties.

[They certainly briefed the intelligence committees; the administration did refuse to answer questions from Patrick Leahy -- who was forced to leave the Senate Intelligence Committee some years ago after being caught leaking classified information. Hm....]

"It's our government, our government!" he said, turning red in the face and waving a copy of USA Today. "It's not one party's government, it's America's government!"

Good heavens, I hope Sen. "Leaky" Leahy has a good cardiologist.

If anything, Sen. Charles Schumer's (D-NY) response was even more humorous, albeit in a refined way. Monday morning Schumer:

I think Hayden's a fine man, but I think keeping the agency independent is really important so the president gets truthful and unvarnished information and I worry that having someone so close to the Defense Department could jeopardize that independence.

Wednesday afternoon Schumer (from the Times story today):

"I want to ask General Hayden about these programs before we move forward with his nomination, which I was inclined to be supportive of, if he showed the requisite independence," said Senator Charles E. Schumer, a New York Democrat and member of the Judiciary Committee.

All right -- how exactly did Schumer teleport from being "worried" to being "inclined to be supportive of," with no movement visible to the naked eye?

Finally, let's hear from a Democrat who is actually on the Senate Select Committee on Intelligence, the committee that oversees the CIA and NSA and which President Bush claims was fully briefed. Here is Dianne Feinstein, hardly a Bush cheerleader:

Senator Dianne Feinstein, the California Democrat who is a member of the Intelligence Committee as well as the Judiciary Committee, appeared to confirm at least the gist of the article, while stressing that what was under discussion was not wiretapping. "It's fair to say that what is in the news this morning is not content collection," she said.

Regardless of her opinion on the policy, it is quite clear from the fact that she could "confirm" the story that Sen. Feinstein was, in fact, familiar with it. In other words, Bush is telling the truth, and the relevant congressional committees were kept informed and up to date.

Taking stock

So let's summarize where we stand now:

  • There is no new scandal; this was thoroughly reported and discussed last year;
  • The only reason it's bubbling up now is that former NSA head Michael Hayden was nominated to be Director of the CIA;
  • It's purpose and relation to defending the nation from terrorist attack is absolutely clear;
  • The Senate and presumptively the House Intelligence Committees have were thoroughly briefed on the NSA pattern-analysis program, just as they were on the NSA al-Qaeda intercept program;
  • Some Republicans not on the intelligence committees -- such as perennial pain Arlen Specter -- appear miffed that they weren't in the loop;
  • There are some civil-liberties concerns about which we should proceed cautiously; but they would require actual lawbreaking on the part of some administration for there to be a serious problem. Those who believe the Bush administration is constantly breaking the law, throwing people in secret prisons, and spying on them just "for the heck of it" will doubtless be even more frightened now;
  • Many Democrats are reacting with chair-jumping, skirt lifting hysteria at this little mouse of a "scandal;"
  • The Democrats plan to use this to try to sabotage Hayden's appointment, the war on jihadi terrorism, and (much more important) Bush's legacy.

Does that about cover it?

The deadly danger of incessant leaking

Well, not quite. There is this rather jaw-dropping point made in every, single story about this program, which appears to be the only original contribution from USA Today. From yesterday's Today:

Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest.

Talk about giving jihadis a road map for getting around the NSA program...! I'm sure there will be a surge of people signing up for Qwest phone service now -- mostly paranoid liberals who believe they're so important that "the Man" is constantly trying to surveil them (I've known several such folks). But I wonder how many terrorists will rush to grab Qwest-based cell phones, now that they know?

Thanks, NSA leakers, for violating your oath and putting the country at risk, just to damage George Bush. I'm sure Americans across the nation appreciate the tradeoff.

And a hearty handshake to phone provider Qwest, for offering the next Khalid Sheikh Mohammed a safe haven for his "privacy rights." Evidently, it's no violation for Qwest to maintain that same database for its own commercial purposes (or to sell to other companies for advertising)... but letting the NSA use it to track terrorist attacks is just beyond the pale.

Of course, Qwest's non-cooperation was also leaked to USA Today by some helpful saint within the NSA. To paraphrase Travis Bickle, we need a big rain to come and wash all the trash out of our clandestine services.

Hatched by Dafydd on this day, May 11, 2006, at the time of 4:12 PM

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» LET THE POSTURING BEGIN from Michelle Malkin
Feckless Arlen Specter is joining the Dems in another round of Beltway braying over NSA's counterterrorism programs: Lawmakers demanded answers from the Bush administration Thursday about a spy agency secretly collecting records of millions of ordinary... [Read More]

Tracked on May 11, 2006 4:53 PM

» The ACLU has a database of it’s own from Sister Toldjah
Jay at Stop The ACLU has done some digging and low and behold, the same institution who slammed the admin for the latest NSA ’scandal’ - regarding datamining of ‘millions of phone calls’ - has (or at one point had) a data collec... [Read More]

Tracked on May 11, 2006 6:47 PM

» NSA Data-Mining Phone Records, So Tell Us Something New from BeltwayBlitz

USA Today set off a flurry of indignation yesterday with its front-page story on another “controversial” intelligence program at the National ...

[Read More]

Tracked on May 12, 2006 7:15 AM

» Re-Hash Of An Old Story from All Things Beautiful
Well excuse me for not being over-excited about a re-hash of an old story, the timing of which stinks to high heaven. AhemNo sooner had the man who ran the National Security Agency for years been nominated to head the CIA than USA Today rushed out deta... [Read More]

Tracked on May 12, 2006 8:50 AM

» A Tale of Two Surveys from Big Lizards
Or, Creatively Crafting Crafty Questions For Fun and Profit. Two recent surveys asked respondents about the National Security Agency and the "recent" revelations -- actually four and a half months stale -- that they have collected data from various pho... [Read More]

Tracked on May 15, 2006 3:11 AM


The following hissed in response by: Big D

When is any article in the papers going to discuss the actual legality of this operation? Not what the Democrats have said or spun, but what the various courts over decades have held to be true?

If they spent more than 5 minutes doing research, they'd realize that the NSA program is perfectly legal, and not even that unusual. Collecting phone numbers is a lot like waiting outside a suspects house and following him around town to see where he goes. No warrant required. Better yet, staking out the pawn shop to see who goes in to buy a gun, then following them home and getting their address. I as a private individual can do this without breaking the law, and so can the government.

The government can't enter someones home, or tape their calls without a warrant. But how is a warrant is usually obtained? Why by exactly the actions described above - observing a pattern of activity consistent with potential criminal wrong doing. How else are you ever going to establish the justification for a warrant in the first place?

I feel sorry for Bush. He must just be shaking his head every day wondering just what the hell is wrong with these people.

The above hissed in response by: Big D [TypeKey Profile Page] at May 11, 2006 5:08 PM

The following hissed in response by: Bill Faith

Best analysis of this I've seen yet, Dafydd. I've linked from NSA Accused of Protecting U.S. From Terrorists. The more I hear about this, the more upset I get -- not at the NSA for doing its job or at Bush for approving of it, but at the idiots who leaked information about it and the ones that published it.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at May 11, 2006 6:26 PM

The following hissed in response by: Bill M

Quibble -- National Security Agency, not Administration.

HoHum - tempest in a teapot time. And we are coming up on the silly season too. I just can't imagine what the summer is going to be like with all this nonsense being bandied about now.

Can we question their patriotism now?

The above hissed in response by: Bill M [TypeKey Profile Page] at May 11, 2006 6:28 PM

The following hissed in response by: Mr. Michael

Aw jeez... doesn't ANYBODY in the MSM have a memory? It was only January when the Lefty Blogsites were advocating the targeted collection of just this data.

Of course, they were advocating that we collect this data on President Bush, VP Cheney and Karl Rove. Remember those professional opposition researchers over at AmericaBlog?

The information is publicly available. The only problem I can see is that the Government isn't paying for it. If I were a stockholder in a Telecom, I'd be ticked... but as a taxpayer, I'm content.

The above hissed in response by: Mr. Michael [TypeKey Profile Page] at May 11, 2006 6:58 PM

The following hissed in response by: Dafydd ab Hugh

Bill M:

Ack, I knew that! I don't know why I wrote administration instead of agency, but I corrected it. Thanks, Bill.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at May 11, 2006 10:50 PM

The following hissed in response by: MTF

I can't wait for the day when Senators mad enough to leak national security secrets are also brave enough to stand up and identify themselves publicly as the leaker!

Cowards. Gravy-sucking pigs. Frenchies.

Anyway, I like how quickly the administration has gone public with a response to this latest treason. If only congressional republicans could stop swilling at the public trough long enough to burp out a few words of aggressive support, I'd be really happy.

The above hissed in response by: MTF [TypeKey Profile Page] at May 12, 2006 5:19 AM

The following hissed in response by: MTF

I can't wait for the day when Senators mad enough to leak national security secrets are also brave enough to stand up and identify themselves publicly as the leaker!

Cowards. Gravy-sucking pigs. Frenchies.

Anyway, I like how quickly the administration has gone public with a response to this latest treason. If only congressional republicans could stop swilling at the public trough long enough to burp out a few words of aggressive support, I'd be really happy.

The above hissed in response by: MTF [TypeKey Profile Page] at May 12, 2006 5:19 AM

The following hissed in response by: hunter

The final stages of degeneracy are when the leaders of the country refuse to see the threats around them and decline to do what it takes to defend the nation. Worse is when the so-called leaders misconstrue the legitimate defense of the nation and seek to end that defense. CS Lewis talked about this, in an especially poetic way in his 'The Last Battle'. We are in deep trouble.
If I could emigrate right now to a nation that is willing to defend itself and also has a culture that fosters liberty, I would go. But alas, there is not a long list of those places, is there?
This country is increasingly being run by the degenerates.

The above hissed in response by: hunter [TypeKey Profile Page] at May 12, 2006 5:57 AM

The following hissed in response by: Franksalterego

I'm a Qwest customer, and am a bit concerned about their lack of respect for MY safety, and the safety of all the people who live in the Northwest.


It seems to ME, that if something happens, and it could be shown that the plot was carried out, using their service, they'd be at a higher risk of lawsuits, than they are by cooperation with the NSA...In fact, I'd be the first in line, to help bring a lawsuit.

The above hissed in response by: Franksalterego [TypeKey Profile Page] at May 12, 2006 6:34 AM

The following hissed in response by: tincan sailor

The folks that leak in secret remind me of
the terrorist who pose for pictures holding
an RPG or AK-47 with their face hidden by a
mask,No Guts No Glory...Just plain old Chicken
S**t S.O.Bs

The above hissed in response by: tincan sailor [TypeKey Profile Page] at May 12, 2006 7:54 AM

The following hissed in response by: Franksalterego

While searching for Addresses for Qwest Leadership, I came across this very interesting piece:

Ex-Qwest CEO Balked at NSA Records Sweep

All Associated Press NewsDENVER (AP) - Qwest Communications was the lone holdout in the telecommunications industry when it came to sharing telephone records with the National Security Agency -- but going it alone was nothing new for former CEO Joseph Nacchio...


...Denver-based Qwest Communications International Inc. has been mired in criminal and ethics allegations for years. It was accused of massive fraud by the government and later restated $3 billion in revenue. Former executives have been accused of wrongdoing -- including Nacchio, who faces 42 counts of insider trading accusing him of illegally selling $101 million in company stock after privately learning Qwest might not meet its financial goals....

Ref. and more:

The above hissed in response by: Franksalterego [TypeKey Profile Page] at May 12, 2006 8:00 AM

The following hissed in response by: Big D

If you go to the Qwest website you'll find that they collect the data, but only distribute it to companies they have a "business relationship" with. Which I think is code for saying "anywhere they can make a buck."

You know you can buy the cell phone records for anyone? $100, no questions asked.

Ever use one of those "rewards" cards at the supermarket? Ever wonder what that is about? The store gives you a discount on purchases. In turn you give the store permission to sell information on your purchases to anyone they please. They track your buying habits, share this information of manufacturers (who pay them for the data, part of which goes to giving you a discount). It is all done in order to serve you better.

Face it. We are all being "data mined" in much more intrusive and obnoxious ways every day without our permission or knowledge. This NSA thing is a joke.

The above hissed in response by: Big D [TypeKey Profile Page] at May 12, 2006 9:30 AM

The following hissed in response by: Don G.

Privacy is a myth.

I'd be really surprised if this program wasn't a waste of money. Echelon became public in the early 90's. AT&T brags that their Daytona database contains all their phone records since the big bang. It's no great leap to assume the NSA would analyze the phone call records.

Unless all terrorists are as stupid as Moussouii, they would assume all their communications are being monitored. Why wouldn't they use something more secure like Skype, encrypted chat, websites with pictures containing hidden embedded messages, etc.

I'm sure IBM, Cray, and EMC love the program.

The government should be spending this money on human intelligence. Then we'd know what the hell is going on in Iran.

I blame the NSA for not getting Qwest's data. Why didn't they just get a court order?

The above hissed in response by: Don G. [TypeKey Profile Page] at May 12, 2006 12:51 PM

The following hissed in response by: BigLeeH

Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.
What a lovely honeypot that would make if the "sources" were lying in that one small detail. Why go to all the trouble of data-mining the world if you can get all the bad guys to switch to the same phone company?

I like to hope that people who work for the NSA realize that, far from being unethical, lying to the media occasionally is a necessary part of their job. One theory of the news media is that they are acting as the paid agents of the public who employ them to get information. Bearing that in mind I hereby authorize the spooks to tell any such agents working on my behalf any lies they want -- provided that they have good reason to believe that such lies will help keep my flabby ass safe from terrorists. I will continue to take any information provided by "sources" inside the intelligence agencies with a grain of salt, and indeed to hope that at least part of it is bullshit.

The above hissed in response by: BigLeeH [TypeKey Profile Page] at May 12, 2006 1:44 PM

The following hissed in response by: Dafydd ab Hugh

Don G:

  • Yes, nearly all terrorists are at least as stupid as Zacarias Moussaoui. He is the median; so by definition, half of them are even dumber than that.
  • They don't use encryption, embedding, or Skype because they don't have the facilities to do so -- at least at the communications rate they need.

    And I wouldn't be so sure that those techniques are all that secure. They attract attention, and with sufficient attention, I suspect they're a lot more crackable than advertised. The terrorists' best defense is to hide among the crowd.
  • The government should be spending this money on human intelligence. Then we'd know what the hell is going on in Iran.

    Sure... in about ten years. HumInt is very important, but it takes a long, long, long time to set up. The Israelis actually have pretty good penetration into Iran; that sort of intelligence is what we buy for our foreign aid to Israel... and a bargain at twice the price!
  • The NSA didn't get a FISA court order because none is needed; this is the equivalent of a "pen register," and the courts have already ruled they do not constitute searches or seizures.

    The flip side of that is that they cannot get a court order to force Qwest to turn over that data, because there is no specific ongoing investigation of any specific person to which it's tied. No court is going to order a private company to engage in open-ended cooperation with the feds to develop a database to allow them to "backtrack" some future criminal investigation. So it's voluntary or nothing.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at May 12, 2006 4:16 PM

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