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NSA Surveillance

The NSA surveillance hearings began today with the testimony of Attorney General Gonzales. To save you the time to read through the extensive transcript (here and here), I thought I’d translate some of Gonzales’s remarks for you:

GONZALES: Before going any further, I should make clear what I can discuss today. I am here to explain the department’s assessment that the president’s terrorist surveillance program is consistent with our laws and the Constitution. I’m not here to discuss the operational details of that program or any other classified activity.

TRANSLATION: I’m here to say absolutely nothing new. I can’t tell you what you need to know to really assess the program. In other words, this will be booooorrriiinnnnggggg. My advice . . . turn off the TV and go watch some paint dry.

GONZALES: It’s an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.

TRANSLATION: Remember the robot probe in The Empire Strikes Back? It’s like that.

GONZALES: While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans. . . . As the president has said, if you’re talking with Al Qaida, we want to know what you’re saying.

TRANSLATION: If you’ve got nothing to hide, then there should be no problem with us listening to you. If you’ve got something to hide, then . . . well . . . we should listen to you.

GONZALES: Presidents throughout our history has authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush.

TRANSLATION: They did it too! It ain’t fair to single us out. Yes, they did it before the FISA was passed, but still!

GONZALES: While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against Al Qaida. . . . Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.

TRANSLATION: A simple syllogism. FISA requires judicial oversight. Judicial oversight requires courts. Courts require lawyers. And everybody hates lawyers, right?

GONZALES: To end the program now would be to afford our enemy dangerous and potential deadly new room for operation within our own borders.

TRANSLATION: One word . . . terrorism. ‘Nuff said.

GONZALES: Our enemy is listening. And I cannot help but wonder if they aren’t shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.

TRANSLATION: In our “democracy,” our government can’t operate in secret and has to explain itself to the people. Why are we being so dumb? The terrorists are laughing at us.

GONZALES: In terms of, “Why not go to the FISA Court?” once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes, for the commander in chief, which of the tools is appropriate given a particular circumstance. . . . What I can say, Senator, is that we are continually looking at ways that we can work with the FISA Court in being more efficient and more effective in fighting the war on terror.

TRANSLATION: Basically, going to the FISA court is a total pain in the ass.

GONZALES: Sir, there is no specific language [in the Authorization to Use Military Force (AUMF)], but neither is there specific language to detain American citizens. And the Supreme Court said that the words “all necessary and appropriate force” means all activities fundamentally incident to waging war.

TRANSLATION: What part of “all” necessary force don’t you understand? If you don’t read “all” to mean “all,” then we can’t detain American citizens indefinitely; we can’t deny them the right to see attorneys; we can’t torture people; and we can’t do many of the things we really really want to do.

GONZALES: I don’t know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime. . . . And so when you’re talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable. And so that’s one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I’m concerned will jeopardize this program.

TRANSLATION: FISA’s for peacetime. This is war. FISA has provisions for wartime, but we don’t like those. Anyway, let’s talk about amending FISA after the War on Terrorism is over . . . otherwise we jeopardize the program. And if the War on Terrorism ever ends, there won’t be any need to amend FISA, since it works so well in peacetime. Got that?

GONZALES: There may be some in America — I suspect there are some in America who are saying, “Well, why aren’t you — you know, if you’ve got reason to believe that you’ve got two members of Al Qaida talking to each in America, my God, why aren’t you listening to their conversations?”

TRANSLATION: Although the FISA framework would allow us to listen to Al Qaida under judicial oversight, I’d rather frame the issue as whether we should be able to listen at all. If Al Qaida’s a talkin’, we should be a listenin’, right? Who wouldn’t want that? ‘Nuff said.


Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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