It's not about security, it's about power

The latest brouhaha to erupt from Mount White House deals with the illegal and unauthorized monitoring of private communication. I say "private communication" because I'm not convinced that this is solely a wiretapping issue as has been reported by the New York Times, Washington Post, and others. In fact, the more I think about it, the less likely it seems that this is about wiretapping. More than anything, why take the risk by conducting illegal wiretaps? It just doesn't make sense. First, a little background about wiretapping that I've learned.

The US government derives the legal authorization to monitor communications from two sources: the Foreign Intelligence Surveillance Act and the criminal code. In this instance, it is is FISA that is the issue. To conduct legal wiretaps, FISA established "secret courts" that process classified wire tap requests. It's a relatively straightforward process. In fact, the whole claim but the Bush administration that they needed wiretaps without court approval because things are time sensitive is, in no other words, a bold faced lie. FISA specifically authorizes the Attorney General to issue wiretap orders upto 72 hours PRIOR to court approval. Which means, if there was a time sensitive, national security issue and a judge could not be reached, it wouldn't matter because under FISA, they could go forward with the tap and receive judicial approval up to three days later.

Title 50, Chapter 36, Subchapter 1, § 1805 of the US Code, (seen here) states that the "[Attorney General] may authorize the emergency employment of electronic surveillance if a judge having jurisdiction...is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application...is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

So enough with all the "time sensitive" nonsense. We'll just call that par and await the inevitable discovery by the mainstream media that Bushies are great liars.

In addition, dozens of wiretapps are approved each and every day, the process has worked effectively since initiation (four rejected wiretap applications since inception), and there are really no complaints. Judicial review has always been a critical element of "searches" and it's pretty much standard that any information collected in an extra-legal search is never going to be admissable in court. So why take the risk? It's obviously politically damaging and it won't aid in the prosecution of suspected terrorists.

And then this little nugget comes across cyberspace. Senator Jay Rockefeller (D-WV), ranking member of the Senate Intelligence Committee writes that he is neither a legal expert nor a technical specialist and thus has not the expertise to determine the legality or intrusiveness of the classified communication monitoring strategy that has been labeled "wiretapping".

This letter, I believe, is the smoking gun. The National Security Agency (NSA), the agency tasked with monitoring and decoding foreign intelligence, has long been rumored to possess the technology to scan, record, and monitor email traffic. Forget your encryptions, the NSA can beat them all. Senator Rockefeller's use of the word "technician" obviously indicates that some type of technology is in play that he doesn't fully understand. It can't be mere wiretapping because not only is wiretapping not that complicated, the Senator has years of experience with simple wiretapping, so it has to be something more complicated. If I'm a betting man, I'm putting money down that the NSA has a filter program running that looks for keywords in all email traffic. By filtering all emails into "relevant" and "non-relevant" categories, they can then investigate more closely the ones that they believe are "relevant" and pursue military and/or criminal investigations. What they do with the "non-relevant" emails is anyone's guess.

If the NSA is really monitoring all of our emails, well, that's a really scary thought.

(By the way, Rockefeller's letter is a very nice "get out of jail free card". Talk about an excellent way to insulate yourself from an inevitable scandal.)

Update: An excellent question posed by the Washington Monthly: "What's more, it's something disturbing enough that a few weeks after 9/11 the administration apparently felt that even Republicans in Congress wouldn't approve of it. What kind of program is so intrusive that even Republicans, even with 9/11 still freshly in mind, wouldn't have supported it?"

One more thing is very clear: the President broke the law. FISA clearly does not authorize this level of survelliance and the President does not have any other legal mandate. So, why isn't he being impeached? They impeached Clinton for less.