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History lesson: The crucial differences between Bush and Obama’s NSA phone surveillance programs

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By Michelle Malkin  •  June 6, 2013 03:17 AM

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It is certainly schadenfreudelicious to see Al Gore and assorted Democratic tools going bonkers over news of President Obama’s radically expanded phone call data collection program — which he, ahem, inherited from the Bush administration and has apparently now widened far beyond anything Bush ever enacted or proposed.

But unlike Gore and company, I am not going to engage in a full, NSA-bashing freakout. Some of us have not regressed completely to a 9/10 mentality.

I will instead provide you with a sober reflection on why I supported the Bush NSA’s work and why Obama’s NSA program raises far more troubling questions about domestic spying than his predecessor.

As longtime readers know, I supported the NSA’s post-9/11 efforts to collect and connect the jihad dots during the Bush years. When left-wing civil liberties absolutists were ready to hang Bush intel officials, I exposed the damned-if-you-do-damned-if-you-don’t hypocrisy of Bush-bashers who condemned the administration for not doing enough to prevent the 9/11 jihadi attacks and then condemned it for doing too much. Bush defended himself ably at a press conference in December 2005 — refresh your memories here.

The Bush NSA’s special collections program grew in early 2002 after the CIA started capturing top Qaeda operatives overseas, including Abu Zubaydah. The CIA seized the terrorists’ computers, cellphones and personal phone directories. NSA surveillance was intended to exploit those numbers and addresses as quickly as possible. As a result of Bush NSA work,the terrorist plot involving convicted al Qaeda operative Iyman Faris was uncovered — possibly saving untold lives, not to mention New York bridges and possibly Washington, D.C. trains. I noted the Bush DOJ account of the plot at the time:

Faris has admitted traveling to a training camp in Afghanistan in late 2000, where he was introduced to Usama bin Laden. Faris admitted that during a meeting in late 2000, one of bin Laden’s men asked him about “ultralight” airplanes, and said al Qaeda was looking to procure an “escape airplane.” Faris admitted that about two months later, he performed an Internet search at a café in Karachi, Pakistan and obtained information about ultralights, which he turned over to a friend for use by al Qaeda.

Faris also admitted that during a visit to Karachi in early 2002, he was introduced to a senior operational leader in al Qaeda. A few weeks later, the operational leader asked what he could do for al Qaeda. Faris said he discussed his work as a truck driver in the United States, his trucking routes and deliveries for airport cargo planes, in which the al Qaeda leader said he was interested because cargo planes would hold “more weight and more fuel.”
According to Faris’ admission, the operational leader then told Faris that al Qaeda was planning two simultaneous attacks in New York City and Washington, D.C. The al Qaeda leader spoke with Faris about destroying a bridge in New York City by severing its suspension cables, and tasked Faris with obtaining the equipment needed for that operation. The leader also explained that al Qaeda was planning to derail trains, and asked Faris to procure the tools for that plot as well.

Faris admitted that upon returning to the United States from Pakistan in April 2002, he researched “gas cutters” – the equipment for severing bridge suspension cables – and the New York City bridge on the Internet. Between April 2002 and March 2003, he sent several coded messages through another individual to his longtime friend in Pakistan, indicating he had been unsuccessful in his attempts to obtain the necessary equipment. Faris admitted to traveling to New York City in late 2002 to examine the bridge, and said he concluded that the plot to destroy the bridge by severing cables was unlikely to succeed because of the bridge’s security and structure. In early 2003, he sent a message that “the weather is too hot” – a coded message indicating that the bridge plot was unlikely to succeed.

The Bush administration argued then that the NSA program that helped uncover the Faris plot was necessary because officials needed to act quickly on large caches of information, such as the data found after the Zubaydah capture in March 2002. Normally, the government obtains court orders to monitor such information from the Foreign Intelligence Surveillance Court. But the window of opportunity to exploit the names, numbers, and addresses of those associated with the top terrorist leaders was obviously small.

As I asked at the time: If the Bush administration chose to pursue FISA warrants, failed to obtain them, let the information go to waste, and allowed another attack to occur as a result, is there any question the finger-waggers at the NYTimes would be the first to attack the President for failing to do everything necessary to prevent it?

I also noted then that despite the Get Bush media’s best efforts to undermine effective counterterrorism measures, the American public stood with Bush.

They trusted him on national security matters.

Flashback:

A majority of Americans initially support a controversial National Security Agency program to collect information on telephone calls made in the United States in an effort to identify and investigate potential terrorist threats, according to a Washington Post-ABC News poll.

The new survey found that 63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism, including 44 percent who strongly endorsed the effort. Another 35 percent said the program was unacceptable, which included 24 percent who strongly objected to it.

A slightly larger majority–66 percent–said they would not be bothered if NSA collected records of personal calls they had made, the poll found.

Underlying those views is the belief that the need to investigate terrorism outweighs privacy concerns. According to the poll, 65 percent of those interviewed said it was more important to investigate potential terrorist threats “even if it intrudes on privacy.” Three in 10–31 percent–said it was more important for the federal government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats.

Half–51 percent–approved of the way President Bush was handling privacy matters.

I must also remind you of some wise words from fellow conservatives who defended the Bush monitoring program back in 2006:

Mark Levin:

Is not life the most important of civil liberties? These intelligence programs are trashed without any curiosity as to whether they’ve prevented any attacks and saved any lives. The hostile responses are largely knee-jerk and lack any kind of context. The arguments are abstract and descend into fear-mongering. While I’m all for philosophical debates, how about a little more reality when it comes to fighting and winning this war—a real war against a horrific enemy.

John McIntyre at Real Clear Politics:

Many of the people decrying these violations of civil liberties are the same ones who ripped the government for its inability to “connect-the-dots” prior to 9/11.

But the paranoia on the left, and in particular, the hatred for the Bush administration has become so intense there is an automatic assumption that the NSA has to be engaging in nefarious activity, spying on you and your neighbor. The idea that the agency is thinking creatively and proactively about how they can legally monitor the bad guys instead of just going about business as usual is, apparently, out of the question for some. The sad truth is it is probably going to take another devastating attack to convince many in this country that we are actually at war against Islamic jihadists..

The differences between then and now are glaring.

The new Obama order covers not only phone calls overseas with the specific goal of counterterrorism surveillance, but all domestic calls by Verizon customers over at least a three-month period.

Trevor Timm, a digital rights analyst at the Electronic Frontier Foundation, called the order “shockingly broad.”

“Not only are they intercepting call data into and out of the country, but they are intercepting all call data in the United States, which goes far beyond what the FISA Amendments Act allows,” Timm said.

“This is an abuse of the Patriot Act on a massive scale,” said Gregory Nojeim, senior counsel at the Center for Democracy and Technology. “Since the law requires that the telephone records sought be relevant to an investigation, it appears that the FBI and the NSA may have launched the broadest investigation in history because everyone’s telephone calls seem to be relevant to it.”

…The “top secret” order issued in April by a judge on the Foreign Intelligence Surveillance Court at the request of the FBI instructs the telecommunications giant Verizon to provide the NSA with daily reports of “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

[Update: Some members of Congress have characterized the Obama order as a routine, three-month renewal of Bush's program. Others believe it has overreached and that Obama's implementation is "overbroad."]

As usual, Obama was against it before he was for it:

It had not previously been confirmed that the Obama administration was conducting similar broad surveillance of calling patterns. However, in 2008 Congress amended the Foreign Intelligence Surveillance Act to give explicit legal authority to aspects of the program President George W. Bush initiated without requiring a future blessing from lawmakers.

Then-presidential candidate Barack Obama opposed the legislation during his primary battle with Hillary Clinton. However, he reversed course shortly after clinching the nomination and voted for a modified version of the bill.

Here is another key difference between the Bush and Obama administration programs.

Bush was fully engaged and committed to the war on terror when the NSA programs were first exposed in 2005, four short years after the bloody 9/11 attacks.

Obama, by contrast, immediately rejected the war on terror for “workplace violence”/”overseas contingency operations” euphemisms and officially declared last week that America’s war on terror is over.

Which makes you wonder:

What exactly prompted the Obama FBI to seek the sweeping FISA order on April 25? And why does it extend through July 19?

If it was related to the April 15 Boston terror bombing, how could Obama then stand up at National Defense University on May 23 and so publicly throw in the towel on combating Islamic jihad?

And if the catalyst for the FISA court order wasn’t the Boston bombing, then why so sweeping and so secretive? If not for the Guardian-published leak, which I must note I find as troubling now as I did during the Bush years, the document would not have been declassified until April 12, 2038.

Another fundamental difference between then and now: While Bush-bashers raised the specter of political spying abuses when the post-9/11 NSA program was exposed, there was never a shred of evidence that such abuses ever took place.

But now, the revelations about Obama’s expansive collection of domestic phone call data come amidst the still-exploding IRS witch hunt scandal, the DOJ/AP snooping scandal, and the invasive DOJ/James Rosen spying scandal — not to mention the gangrenous distrust of government fostered by the stonewalling, lies, and obstruction at the heart of the Benghazi and Fast and Furious national security debacles.

Is it possible that the Obama NSA program has a legitimate counterterrorism/national security objective?

Yes, remotely.

Is it crucially important to consider 1) the creeping, creepy surveillance-state context in which this current administration operates and 2) the naked contempt this current administration has shown for the privacy rights of its political enemies?

Hell yes, absolutely.

***

Related:

Background on the Protect America Act of 2007 and the FISA amendments of 2008.

Reminder: Obama campaigned against FISA amendments of 2008, then voted for it.

Background: NSA TERRORIST-SURVEILLANCE PROGRAMS AND FISA

Background: Terrorist surveillance and the Constitution and more historical context here.

Andy McCarthy on passage of the FISA amendments back in 2008:

Here is the bottom line: Our intelligence agencies will once again have authority to conduct aggressive monitoring of foreign powers, including terrorist organizations, which threaten the United States. In particular, this will be the case overseas — that is, when foreigners located outside our borders communicate with each other. The Central Intelligence Agency and the National Security Agency will essentially be able to collect foreign intelligence without interference from the courts, the status quo ante that was U.S. law for decades before being upset by a secret court ruling last year.

Moreover, the telecommunications companies which patriotically complied with administration requests for assistance in the emergency conditions that obtained after nearly 3,000 Americans were mass-murdered in the 9/11 attacks will receive retroactive immunity. That is, they will be relieved of the potential billions in liability they (and their shareholders and customers) faced in scores of lawsuits.

The telecoms were sued by the ACLU and other privacy eccentrics because they cooperated in the NSA’s warrantless surveillance of suspected international terrorist communications that crossed U.S. borders — a program the legality of which is richly supported by precedent. Consequently, the American people will be relieved of the vulnerability they would face if industry’s top information technology experts were disincentivized from assisting in our security. (While I have long been a critic of our surveillance laws, I note once again, in the interest of full disclosure, that my wife works for Verizon.)

Contrary to the sky-is-falling hysteria we are likely to hear in the coming days, this immunity is not “blanket.” It benefits only private actors. That is as it should be. This controversy involves the executive and legislative branches of government fighting over ultimate control of surveillance authority. Private actors who merely complied with ostensibly lawful requests should never have been pawns in that political battle. And only those private actors who can show, by “substantial evidence” that they were complying with a written request from government will be afforded immunity.

Andrew McCarthy’s dose of reality on latest Obama story here.

Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. The Supreme Court held as much in its 1979 Smith v. Maryland decision. Understand: the phone record information at issue here is very different from the content of telephone conversations. Because the latter involve higher privacy expectations, they are heavily regulated under not only the Fourth Amendment but both Title III of the federal penal code and the Foreign Intelligence Surveillance Act (FISA). Under these laws, the government is not permitted to access communications content absent court authorization based on probable cause either that a crime has been committed or that the surveillance target is an agent of a foreign power (such as a terrorist organization or a hostile government).

…By gathering massive amounts of telephone traffic information, the government is able to establish phone call patterns, which is vital for mapping terrorist organizations. Without this, you cannot have preventive, intelligence-based counterterrorism – i.e., counterterrorism whose goals are to identify terror cells before they strike and to stop atrocities from happening. To be sure, Congress could deny the government this kind of information by statute. If lawmakers did that, however, we would be in a September 10 counterterrorism paradigm – i.e., rather than prioritize prevention, we would be contenting ourselves to investigate and prosecute only after attacks have occurred and Americans have been killed.

Can the kind of information gathering the government is doing – and has been doing in this fashion since 2006 – be abused? Could the Obama administration use its national-security authorities as a pretext for spying on Americans? Of course it could. All information collecting can be abused. It may sound trite to point out that elections have consequences, but it really matters who we elect to run the executive branch…

…The easy solution here is to couple intelligence gathering with exacting congressional oversight. The Justice Department, the NSA, and other appropriate executive branch agencies must be permitted to keep collecting telephone record information. Their highest responsibility is to protect the nation, and they “cannot connect the dots,” as we demand that they do, unless you let them have the dots in the first place. Nevertheless, because there is great potential for abuse – for spying on ordinary Americans or, more likely, political opponents of the administration – there must be very exacting congressional oversight.

This is why it’s so critical to have a trustworthy president and administration – including an attorney general Congress can trust to provide truthful, accurate and complete information. It is not unreasonable to conclude that the Obama administration – with its serial lawlessness, authoritarian abuses of power to harass dissenters, and pattern of misleading and stonewalling Congress – has so grossly violated the public trust that it is unfit to exercise the executive’s awesome investigative authorities. It must also be observed, though, that those authorities exist because they are necessary to our security.

The problem here is not government power. It is the government officials we’ve elected to wield it.

***

Just a reminder about how FISA defines electronic surveillance:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

To refresh your memories: If an NSA surveillance program tracks all international communications (or all international communications to al Qaeda hotspots such as Afghanistan), it does not target specific individuals as required by 1801(f)(1). If the communications are intercepted outside the U.S., the NSA program falls outside the definitions in 1801(f)(2) and 1801(f)(4). If the program excludes intentional capture of purely domestic communications, it falls outside the scope of 1801(f)(3).

Bottom line: a massive surveillance system that intercepts millions or billions of international calls and e-mails may not constitute electronic survellance as defined by FISA, provided that the interception occurs outside the United States and neither specific individuals nor purely domestic calls are targeted.

Under Bush, collection of purely domestic calls by the special collections program was rare or inadvertent — by the New York Times’ own admission.

And the data mining program exposed in May 2006 (which I linked/referred to at the very top of this blog post) was expressly established “to analyze calling patterns in an effort to detect terrorist activity.”

Under President “War on Terror is over” Obama, massive, blanket collection of data involving purely domestic calls placed by Americans to other Americans is the intended objective, not an accident.

This is what overreaching looks like.

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