''Is it just me, or is secret blanket surveillance obscenely outrageous?''

[Octafish]

15. J. Edgar Hoover with Supercomputers

January 05, 2006
Ray McGovern

EXCERPT...

But “speed and agility” cannot be the rationale for breaking FISA. The FISA law contains intentionally flexible provisions designed to provide speed and agility in expediting emergency requests. The law grants the attorney general enormous power and discretion to authorize secret “emergency” electronic surveillance and searches for up to 72 hours, before any court order is granted. No court order at all is required if the surveillance is terminated before the 72-hour period ends. So why did the Bush administration order NSA to skirt the FISA law protecting Americans from eavesdropping? This remains the most puzzling question.

The most cynical and, I fear, the most direct answer can be gleaned from Vice President Cheney’s bizarre assertion—supported, no doubt, by a stack of in-house legal opinion, that in war time the president “needs to have his powers unimpaired.” As noted above, on Dec. 19, Gonzalez invoked the “inherent authority under the Constitution” of the commander in chief, as well as the equally ludicrous claim that Congress’ authorization of war after 9/11 trumps FISA—a claim that even The Washington Post has termed “impossible to believe.”

These extreme views are the same ones that underpin the president’s decision to flout international and U.S. criminal law by approving practices like torture, until now almost universally rejected by civilized societies. The answer may be simple—“imperial hubris,” one might call it. And if—as seems to be the case—senior leaders like Colin Powell acquiesce in torture and Gen. Mike Hayden in illegal eavesdropping, shame on them. This would merely show, once again, that absolute power truly does corrupt absolutely—indeed, that even closeness to absolute power can.

A more nuanced explanation may lie in the physics of the challenges faced by NSA and the availability of sophisticated technologies not foreseen when the FISA law was passed in 1978. At the press conference, the attorney general issued a pointed reminder that there have been “tremendous advances in technology” since 1978. Recent press reports on the number of communications being monitored by NSA suggest that the number may be so large as to be technically or practically impossible to take to the attorney general for approval as individual FISA “emergencies.” Consistently high numbers of monitored communications could have trouble passing muster at the FISA court as “emergencies,” for the exceptions would quickly swallow the rule.

A recent article by Charles Freid in the Boston Globe suggests that communications are now selected for monitoring based on highly sophisticated algorithm programs and that “at the first, broadest stages of the scan, no human being is involved—only computers.” This, and the high numbers involved, would make it impossible to obtain “emergency” AG approval on an individual basis, as required by FISA.

As Gonzales has indicated, initial soundings were taken with Congress and the prognosis was deemed poor for obtaining NSA vacuum-cleaner-type authority to suck up communications—including those to or from Americans—from wires and the ether. But is that not what government lawyers are for; i.e., to devise ways to make such things legal and possible at the same time? There is no sign of any serious effort on the administration’s part toward that end. Rather, administration officials preferred to fall back on the “anyway” rationalization; i.e., the notion pushed by top administration lawyers that the president has the power to authorize eavesdropping anyway.

CONTINUED via Waybac Internet Archive...

http://web.archive.org/web/20060111185026/http://www.tompaine.com/articles/20060105/j_edgar_hoover_with_supercomputers.php

Ray McGovern works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour. A veteran of 27 years in CIA's analysis directorate, he is now a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).