Suspension of critical faculties has commenced (resumed? continued?) on the left - Atrios has posed a challenge question about the NSA warrantless eavesdropping; rather than strain their imaginations to come up with an answer, we note high fives on the left (well, if Glenn Greenwald and Jane Hamsher are King and Queen of the left, anyway...).
Explain to me, in your best wingnutnese, how exactly it damages national security to reveal the fact that we spy on people without secret warrants instead of the fact that we spy on people with secret warrants?
Well. You will not find a more ardent lefty than Gary Farber, so let's hand him the mike for an answer:
As I've said elsewhere, many many many times now, in varying words, since December 20th, in answer to the endless mantra of "but why couldn't they just get FISA warrants?": bottom line: if you're doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can't get warrants. It's not humanly possible.
Which, as I keep explaining, only makes the threat exponentially larger than most non-tech oriented left/lib/progressives seem to understand, with this antediluvian focus on "wiretaps" and "why can't you get a FISA warrant?" That's a question that was entirely sensible when we all asked it last month. It's long been answered and answered and answered and answered.
Or let's put it another way - to explain why warrants wouldn't work would require a fairly detailed description of "The Program", which some folks considered a bad idea.
Well, let me take a turn and answer a question with a question or three:
(1) Why did Jane Harman, ranking Democrat on the House Intel Committee, write this last December in response to the Times story?
Dec 21, 2005
Washington , D.C. – Congresswoman Jane Harman (D-CA), Ranking Member on the House Intelligence Committee, today issued the following statement:
“As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.
(2) Why did Sen. Rockefeller, ranking Dem on the Senate Intel Committee, hand-write a letter to Cheney and his files about The Program rather than laugh out loud, exclaim "There is nothing new here!", and demand that the full Senate Intel Committee be brought into the briefings?
(3) Why did the Time sit on this story for a year after being told there were sensitive national security concerns? Why did they write (Risen/Lichtblau, Dec 16, 2005) that:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
Possible unifying answer - Harman, Rockefeller, and the editors of the Times are all dupes. Uh huh. Another possible answer is, they know enough about this program to know that there might still be some secrets there.
Folks who think that the catalog of Atrios's ignorance and the limits of his imagination define the boundaries of human endeavor will remain bemused by his question. For myself, I am convinced that I don't know enough about this program to have any solid idea what security issues might be involved, so I am relying on the good, if unsteady, judgments of elected representatives such as Harman and Rockefeller.
UPDATE: I am boldy promoting myself out of the comments section. Let's take for granted that Al Qaeda planners have been worried for years about the possibility that their electronic communications might be intercepted. What, then is the harm in the original NY Times story?
Well, dare we presume that after four years The Proragm (of NSA warrantless eavesdropping) has show results? MS. Harman seems to think so. Consequently, three ideas spring to mind:
(1) Suppose, over the last few years, a few Al Qaeda plots have gone sour due to The Program. The after-action folks at Al Qaeda may wonder What Went Wrong - for example, did a defector rat them out, did a money trail get traced, were they videotaped while buying explosives, what?
A series of Times front pagers highlighting a successful program of communications intercepts may provide them a helpful clue and let them focus on their real weakness, rather than encouraging them to waste time and resources trying to plug fifteen possible non-leaks.
(2) The AQ communication strategy presumably balances flexibility, speed, and security, using, for example, some mix of couriers and electronics. A big Times front pager or ten might prompt them to re-think the mix. That could be a good thing, if their revised procedures are unduly cumbersome. But it might not be, if their more-secure new system lets them evade detection.
(3) Any communication sysytem is susceptible to (a) bad design; and (b) bad implementation. For example, once we broke the Enigma code in WWII, the most diligent radio operator in Germany could not secure their communications because the basic design was flawed.
However - AQ may have a well-designed system, but it is still liable to human error due to laziness, stupidity, nerves, or whatever. For example, some fool who just couldn't resist calling Mom once a week might have blown a plot a year ago (NO, I have no idea, nor do you).
Today, even with three weeks of reminders on the NY Times front page that THE NSA IS LISTENING, a similar AQ a-hole might be calling Mom right now. However, that sort of lucky break is currently just a bit less likely - presumably, the AQ people who worry about security have been screaming their heads off to remind the rest to button everything down.
If these NY Times stories have (1) provided useful after-action intel to AQ; (2) prompted a sensible re-design of the AQ comm system; or (3) prompted more diligent implementation of an already well-designed system, then we have been hurt.
MORE: Jane Harman spoke with Brit Hume:
HUME: On December 21st when this program first came to light, you issued a statement that said, and I quote, "I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities."
More recently, however, you have been critical of this program, saying -- or at least critical of the way that Congress has been briefed on it.
HUME: You were among those briefed, correct?
HARMAN: I was in the so-called gang of eight, which is the chairman and ranking member on the House and Senate side of the Intelligence Committees, and the leadership of the House and the Senate.
HUME: And outline, if you will, your concerns about those briefings.
HARMAN: All right. Well, first of all, the program we were briefed on in a very closed environment in the White House, with no staff present, on a basis that we could not discuss it with anyone, was basically a foreign collection program. I still support that program. And I think the leak of that program to the New York Times and maybe elsewhere compromises national security...
HUME: You say it's...
HARMAN: ... so I don't...
HUME: Right. I understand.
HARMAN: ... change that view for a second.
HUME: You say it's basically foreign. Were you not made aware individuals within the United States' conversations with the suspected terrorists overseas were part of the program?
HARMAN: It's a classified program, so I can't discuss what I was made aware of. But let me say...
HUME: Well, I know, but the...
HUME: ... toothpaste is out of the tube...
HARMAN: ... it was made clear to me -- no...
HUME: ... when it's known that that's the case.
HARMAN: But it was made clear to me that conversations between Americans in America were not part of the program and require -- and I think they do -- a court warrant in order to eavesdrop on them.And that's been a point of confusion, because some of the press articles allege that this is a so-called, as you said, domestic surveillance program. That's not what I believe it is.
So what does she want?
HUME: You're now saying, however, that those briefings were insufficient. Why did you not, if you didn't, say so at the time and...
HUME: ... take the matter to the president or whatever?
HARMAN: Fair question. And my answer, in hindsight, is that I came into an ongoing process. I believed that the legal framework was set, and the briefings were about the detail of the ongoing program. Remember, I support the program.And perhaps I should have had more information at the time. But now that I have been able to discuss this program with legal scholars -- not the details of the program, but the existence of the program -- since it was disclosed by the president, I now believe that under the National Security Act of 1947 the full committee should have been briefed. And that's what I'm asking for.And I believe that that is what the law requires. I also believe that members of Congress should exercise oversight over programs like this. And there are questions about whether this program complies with the domestic laws we have. And if it doesn't, either it should be changed or they should be changed.
HUME: Do you think, then, that perhaps this program, which you say you support -- are you suggesting that it may, indeed, be illegal?
HARMAN: Well, the foreign collection program that I know about I believe is legal and necessary. If in fact, as some of the newspaper stories allege, there is a domestic surveillance program going on, my view is that the law requires that domestic surveillance only be done pursuant to a court order, either with the Foreign Intelligence Surveillance Court or the criminal court.
Ms. Harman eventually asked some questions of the Administration:
HUME: But when did you ask it?
HARMAN: Recently. Recently, as soon as...
HUME: Well, why didn't you ask it two years ago when you started getting briefed about this?
HARMAN: Well, perhaps I should have, Brit. But again, I could not discuss this with anybody two years ago. And I did not discuss it with anybody until the president disclosed the existence of the program, at which point the considerable resources that Congress has in terms of, you know, constitutional expertise and so forth, could be brought to bear.Now, the people writing these opinions don't know the specifics of the program, but they know enough about how the FISA court works and how criminal wiretap law works, so that they can opine about this.
HUME: All right. Let me...
HARMAN: I'm a trained lawyer myself, but I need this expertise. I think we all do.
Brilliant - the President may or may not have been staging a coup, but she didn't want to annoy him by asking anyone. Nor was she clever enough to pose some "hypotheticals" to her staff and get some research done. Great.