If you ask my colleague Jim Harper about his past, he’ll tell you a suspiciously plausible story about going to law school, working on the Hill, and so forth. This of course, is complete nonsense, as I’m learning from James Bamford’s Body of Secrets. It turns out that Jim has been intimately involved in espionage activities since the 1960s. From pp. 244-5:
A man with darting eyes was walking quickly up the sidewalk on Sixteenth Street in northwest Washington. A dozen blocks behind him stood the North Portico of the White House. Just before reaching the University Club, he made a quick turn through a black wrought-iron fence that protected a gray turn-of-the-century gothic stone mansion. On the side of the door was a gold plaque bearing the letters “CCCP”—the Russian abbreviation of Union of Soviet Socialist Republics.”
A few minutes later, Yakof Lukashevich, a slender Soviet embassy security officer with stiff, unruly hair, greeted the man. “I want to sell you top secrets,” the man impatiently told the Russian. “Valuable military information. I’ve brought along a sample.” With that, he reached into the front pocket of his jacket and handed Lukashevich a top secret NSA keylist for the U.S. military’s worldwide KL-47 cipher machine. With it, and the right equipment, the Russians would be able o break one of America’s most secret cipher systems. “My name is James,” the man said. “James Harper.” It was the beginning of a long and profitable relationship. Within weeks Harper would be selling the Soviets keylists for the KW-7, a cipher system more modern and secret than the KL-47. Over the KW-7 passed some of the nation’s most valuable information.
So when Jim writes about effective and ineffective ways to conduct surveillance, we should pay attention, because he writes from first-hand experience.
My audio wrap-up of the FISA fight is here.
When he’s opining in his areas of expertise, especially copyright law, Larry Lessig is often a brilliant scholar with important things to say. Unfortunately, when he wanders outside of his area of competence, he tends to be a lot less perceptive. Consider, for example this incredibly wrong-headed defense of his FISA vote:
Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.
This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).
The amendments to FISA were not “good.” There’s just no way you can characterize the FISA amendments as an improvement over what was already on the books. They sure as hell aren’t “a regime that requires the executive to obey the law,” except perhaps in the trivial sense that they’re so permissive that the Bush administration may not need to break the law in order to continue its dragnet surveillance activities. The amendments eliminate meaningful judicial oversight for overseas communications—allowing broad “authorizations” that don’t name specific individuals, allowing the judicial review process to drag out for months while surveillance continues, and allowing the government to bypass the courts and send “directives” directly to telcos. This is not a structure that will lead to meaningful scrutiny of eavesdropping by the judicial branch.
Since Lessig doesn’t explain what’s “good” about the amendments, or how they constitute progress, I’m not really sure how to respond. I explained why the amendments are bad in detail here, should he come across this post perhaps he can read that and tell me where I went off the rails. But I do wonder whether it made an impression on him that virtually everyone outside the Democratic leadership regards this as an unadulterated victory for the White House. If this represented “progress” that places new restraints on the executive branch, why did almost every Republican in Congress vote for it? Why have we seen nothing but cheering from National Review, Human Events and other partisans for executive power? Everyone on the right knows they won. Everyone on the left knows they lost. The only people who think this was a tough compromise are senior Democrats in Congress who have an obvious interest in exaggerating their toughness. And Larry Lessig, apparently.
I’m not sure what to say about yesterday’s FISA vote that I haven’t said a dozen times before. I’m disappointed, obviously, but I can’t say I was surprised. I was probably more surprised that the White House didn’t get its way in February than that it did get its way in July. The powers that Congress granted yesterday will almost certainly be abused in the coming years, but we probably won’t find out about them until long after it’s too late to do anything about them.
But Aaron Massey makes an excellent point that’s worth quoting:
Although there are many aspects of this bill that disappoint me, I would like to take a moment to talk about the one closest to my research: legal compliance in technology systems. This bill sets an incredibly bad precedent for anyone advocating legal compliance. Essentially, what the telecommunications companies did was blatantly against the law. However, this bill retroactively provides them immunity for their actions. When the consequences for violating the law are removed retroactively, companies have an incentive to violate the law in the future.
The ethics in situations like this are already difficult for engineers to recognize. For a technologist like Mark Klein, setting up a room with a whole bunch of cables going into it is a normal daily aspect of their job. Most will not see the ethical implications. Most engineers at that level are not aware of the bigger picture. They may not be able to say for sure whether their action is a violation of the law. To speak out about such a thing already takes great personal courage.
The last thing engineers need to see is a case like this. They will recognize that even if they do risk their job to speak out about a possible legal problem, and even if that possible problem is recognized as such, it is now, with the passage of this bill, clearly possible that Congress will bend over backwards to let their employer off the hook.
To understand how difficult it was before this amendment was passed for someone like Mark Klein to do what he did, I urge you to read the introduction Cindy Cohn gave him at the EFF Pioneer Awards. Congress has just made it harder on the heroes. This is a disappointing day.
Mike is completely right to point out that Sen. Hatch’s comment that “Congress should not condone oversight through litigation” is absurd. Judicial scrutiny of executive branch activities is precisely what the Founders had in mind when they set up three branches of government, and the courts were doing exactly what they were designed to do.
But I also want to point out another absurd thing about Hatch’s statement: even if we granted that oversight-through-litigation isn’t the way to go, shouldn’t he be putting forward some other oversight mechanism? Like a warrant requirement, for example? Or aggressive Congressional hearings? One can imagine taking this kind of argument seriously if the opponents of the lawsuits were putting forward some other mechanism for holding the government and the phone companies accountable for their actions. But as far as I can tell, the Republicans, along with a depressing number of Democrats, are utterly uninterested in any kind of oversight at all, whether it comes from the legislative or judicial branches. The goal isn’t to replace “oversight through litigation” with oversight through some other, more effective process. The goal is to avoid having to do any oversight at all.
I appeared on KMOX radio in St. Louis yesterday, appearing after my hometown Republican Senator, Kit Bond. Bond’s comments are here. My response is here. Bond has an op-ed on the issue here.
From pp. 141-143 of The FBI and American Democracy:
For inexplicable reasons, [John Malone, head of the FBI’s New York Field Office in the 1960s], had not complied with the record destruction requirements of the Do Not File procedure. His failure to do so preserved a massive file (amounting to twenty-seven volumes) that documented the number and targets of break-ins conducted by New York agents, identified the agents participating, and contained the specific records of the targeted individuals or organizations that agents had photographed…
Because the Malone file confirmed that, in 1972 and 1973, New York agents had conducted break-ins during an investigation of the Weather Underground activists, a practice that fell within the five-year statute of limitations, Justice Department officials accordingly instituted a criminal inquiry that led to the indictment of John Kearney, the FBI supervisor who headed the New York break-in squad (identifiable from the Malone records). FBI agents nationwide bitterly criticized Kearney’s indictment, protesting that he had been following worders. Further investigation led to the May 1977 discovery of thirteen break-in authorization memoranda at FBI headquarters. Consequently, in April 1978, Justice Department officials dropped the Kearney incitment and indicted, instead, former Acting FBI Director L. Patrick Gray III, former FBI Associate Director W. Mark Felt [AKA “Deep Throat”], and former FBI Assistant Director Edward Miller for having authorized illegal practices. Gray subsequently succeeded in having his trial severed from that of Felt and Miller, arguing that he had been misled and had no knowledge of the Weather Underground break-ins. Conceding the weakness of their case against Gray, Justice Department officials dropped the crimnal charges against him in December 1980. Felt and Miller were convicted. But President Ronald Reagan pardoned them on March 26, 1981, on the grounds that “they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.”
Is it too much to hope that history repeats itself when President Obama takes office? Minus the pardon, preferably.
More fun stuff from page 100 of the Theoharis boo:
FBI officials were interested in the sexual indiscretions of elected memebrs of Congress. FBI agents were specifically encouraged to report and record any such discoveries and to do so discreetly. During an interview with the so-called Pike Committee in 1975, a former FBI agent described this practice. Puzzled over why such information was being collected, the agent claimed to have consulted his boss, FBI Assistant Director Cartha DeLoach. He then recounted DeLoach’s response: “The other night we picked up a situation where the Senator was seen drunk, in a hit-and-run accident, and some good-looking broad was with him. He [DeLoach] said, ‘We got the information, reported it in a memorandum’ and DeLoach—and this is an exact quote—he said ‘by noon of the next day the good Senator was aware that we had the information and we never had any trouble with him on appropriations since.'”
Now, I have no evidence that today’s NSA or FBI is doing anything like this. But of course, someone in the 1960s wouldn’t have realized what the FBI was doing then, either. We certainly shouldn’t be passing legislation making this sort of thing easier to pull off and harder to uncover.
Ars has a write-up of a new report that claims that the transition to digital television will be a disaster, and that the government needs to spend still more money to ease the transition process. The whole thing is just silly. The government is providing two free converter boxes to every household. If someone is too oblivious to apply for a converter box in the months leading up to the transition, I can only assume there will be lots of discussion of it on their televisions the week or two before the transition. And if that doesn’t convince them to get a converter box, surely they’ll figure it out the day their TV stops working.
I’m sorry, but going for a few days with no television just isn’t an emergency. I suppose it’s remotely possible that a natural disaster will hit the day after the transition and somebody won’t be warned because they didn’t have their converter box installed. But this is frankly quite a reach. People don’t have access to TV for all sorts of reasons. I rarely turn mine on because I’ve got better things to do with my time. That doesn’t constitute an emergency.
It warms my heart to see common sense prevailing among Ars’s commenters. As Ars reader brownd4 puts it, “If people aren’t smart enough to know about this ahead of time, they’ll do something about it when their TVs go dark. Not a big deal.”
I’m boning up on the history of the FBI, reading Athan Theoharis’s The FBI and American Democracy. So far, I’ve gotten from the FBI’s inception (100 years ago this month) to midcentury. The most remarkable thing about it is how familiar it all seems. As Theoharis tells the story, the FBI has, from its inception, pushed for ever broader authority to spy on Americans. During the first half of the 20th century, it pushed relentlessly for broader statutory authority. When Congress would not give it the authority it wanted, it sought authorization from senior executive branch officials for authorization to break the law. If authorization wasn’t fortcoming, the bureau would often do what it wanted anyway and not tell its nominal superiors of its activities.
A few illustrative anecdotes:
In 1937 and 1939, the Supreme Court ruled that wiretapping was illegal under the 1934 Communications Act. President Roosevelt responded in 1940 with a “secret directive authorizing FBI wiretaps during ‘national defense’ investigations. The president privately reasoned that the Court’s rulings governed only criminal cases.” Roosevelt required the FBI to seek specific authorization from the attorney general for each wiretap, but the FBI found this requirement too onerous, and “installed wiretaps without the attorney general’s advance approval” on at least 17 occasions.
In 1954, the Supreme Court held that trespassing in order to install bugs violated the Fourth Amendment. The FBI asked the attorney general for authorization to ignore the ruling and continue illegally bugging peoples’ homes, but the attorney general sought plausible deniability, writing that he “would be in a much better position to defend the Bureau in the event that there should be a technical trespass if he had not heretofore approved it.” The FBI continued bugging, without bothering its nominal superiors with the details.
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