Tuesday, February 07, 2006

Biden Asks The Question

About a month ago, I passed along a question first posed by Glenn Greenwald regarding the claim that the revelation of the NSA domestic spying program has hurt national security.

Can anyone - anywhere - explain, just a little bit - just one time - how "national security has been damaged" by revelations that the Administration was [secretly] eavesdropping without FISA-required warrants and judicial oversight rather than [eavesdropping] with them?
The implication being that al-Qaeda was already sufficiently concerned about the prospect of FISA-approved wiretaps on phone calls that they would not have been chatting away freely on the phone prior to the revelation that Bush was circumventing the FISA court-approval process.

Yesterday, Senator Biden put "the question" to Attorney General Gonzales, and the response was, shall we say, laughter-inducing (via Atrios):

BIDEN: Thank you very much.
General, how has this revelation damaged the program?

I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls.

I mean, I'm a little confused. How did it damage this?

GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.

And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.

But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.

Oh brother. Back to the "Forgetful Bin Laden" theory. When I cross-posted "the question" on American Footprints, there were some interesting theories put forth about how this could have compromised actual national security. Orrin Kerr's was particularly intriguing - a theory about the potential newfound reluctance on the part of foreign governments to allow message routing through the US (assuming this routing was/is crucial to the NSA wide-net telephone intercepts).

Others discussed the fact that certain tangential aspects of the story - such as widespread data mining and the like - could have tipped prospective terrorists off to the full range of NSA's capabilities beyond wiretaps. The problem with this conjecture is that the Bush administration has, for the most part, stuck with the story that the surveillance consists of narrowly targeted wiretaps and other surveillance (fax, e-mail) and, even then, only used for "known" al-Qaeda suspects, and their affiliates (although there has been some flip-flopping on this issue). So, until it is confirmed that there is something more than targeted surveillance occurring here, let's stick with the "al-Qaeda might forget we're tapping their phones" argument.*

The problem with this memory-lapse line of argumentation is that President Bush and others have been quick to champion (repeatedly) the terror-busting abilities of certain aspects of the Patriot Act and other effective new anti-terrorism measures initiated under his watch. The indefatigable Glenn Greenwald chronicled many such "sensitive" disclosures here.

So, under the "Forgetful Bin Laden" theory, each time Bush does this, he is once again putting al-Qaeda on notice as to what our defenses are and how they should comport themselves accordingly. Each stump speech a reminder. Every soundbite, an assist. Is that then a breach of national security? Or is it only so if a newscarrier picks up the story?

Not that many answers. Just more questions.

*(Kevin Drum links to a WaPo story that might have more of the details we're looking for)

(Incidentally, praktike posted on this same bit of Gonzales/Biden dialogue over at American Footprints while I was still putting the finishing touches on this post - no plagiarism, honest)

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