Another note on wiretapping

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Recall that the issue in the current fuss over the NSA's wiretapping program is that the conversations being intercepted were terminated on at least one side in the US, which is why the NSA needed any kind of explicit authorization to monitor them. Outside the United States, different rules apply. Inside the security community, this has always been regarded as a bit disingenuous. As Cullen Jennings reminded me last night, the rumor was and is that the US and the UK collaborated to circumvent this rule, with the US spying on people inside the UK and the UK spying on people inside the US, but sharing intelligence so that the effect was that each country got to spy on their own citizens. (Keyword: ECHELON).

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I think the real fuss is purely that GWB was caught breaking the law rather than simply doing something we don't like.

But this raises the question as to why the US would choose to use the NSA directly to spy on people here, instead of outsourcing the work to GCHQ. There are several reasonable and fairly innocent reasons why this might have happened, such as that the US didn't want the UK to know about these particular wiretaps, or that the calls terminated on the other side in the UK, or that the UK didn't have the capability to tap them.

But I think that the explanation that seems to be floating around the most right now, that "the Bush administration simply feels it is above the law", doesn't cover things. The only reason wiretap jobs like this weren't stuck on the Echelon queue simply by default was some compelling reason in these particular cases to not use Echelon.

Uh, maybe the administration actually thought it wasn't breaking the law, and hence didn't see any reason to try to circumvent it this way?

I know that this explanation imputes sincerity to the administration--both in its claimed intention to obey the law and its current explanation of its actions--and is therefore completely implausible to many people. But even paranoids can sometimes appreciate parsimony.

(Note: I make no judgment regarding the legality of the administration's actions, which seems to be an extremely complex technical issue on which I'm not qualified to judge.)

Dan, I think you're missing my point.

This represents (as far as I know) a change in operational procedures - legal or not, someone decided that having the NSA do the taps itself provided some advantage over having GCHQ/etc do it on our behalf. If it didn't, then why not continue with business as usual? Whatever this advantage was, it was worth the administration taking the time to do a legal analysis of it, and, now, worth putting up with a lot of bad PR over.

So... what is the advantage? What can the NSA do better than the GCHQ in this case? Is this a technlogical or political issue? I don't know, but I'd like to find out (and, I'm sure, never will).

There was an article in yesterday's Wash Times that transmitted an argument that (even with the "Patriot" Act) it takes weeks or days to get the paperwork together to go to the FISA court.

Actionable intelligence can easily expire in hours or even minutes.

Perry, we used to talk about how communication without borders would weaken national governments. I don't recall our discussions ever wandering over to what the effects of war without borders might be. It's pretty clear to me, however, that a war being fought by non-state actors in defiance of the usual rules of war makes a hash of the police/military distinction which has been a cornerstone of American liberty. Ever since taking Russian, I've been struct by the ahistoric nature of this divide.

Perhaps we need to think about how to best preserve liberty in the absence of this distinction. Militarily, we can hardly assume that our enemies have failed to plant extensive networks of operatives. We can also forget defeating these networks in the presense of open borders.

Yesterday, there was a talk-show caller who claimed to have been involved in this sort of activity. He claimed personal knowlege that every administration back to Carter had done this. It's common knowlege that Nixon, Johnson, and Kennedy did. I have little doubt about Eisenhower, and Truman and Roosevelt were conducting an official war.

It got me thinking. I read in someone's notes on the Constitutional Convention that Gen. Washington's presense, chairing the convention, served as a constant reminder of exactly who the first president would be. Given this reminder, the delegates were quite ready to invest powers in the office that they would not have allowed a man of lesser character.

Does the office of the Commander-in-chief have the authority to conduct domestic surveillance of enemy agents without further oversight? I would hope so, if for no other reason that the fact that there is not always enough time to jump through the necessary hoops. But who gets to define "enemy agents"?

It boils down to a matter of trust. But no matter how many legal hurdles are put in place, compliance with these hurdles is still a matter of trust.

Jack, is it your claim that outsourcing this work to GCHQ was in every way every bit as convenient for the NSA as doing it themselves? I'd assume that the NSA would always have preferred to do this work themselves--less bureaucracy, less delay, more direct control, no need to reciprocate, etc., etc.--and were happy to "insource" any part of it once they had approval to do so.

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