Simple Thoughts

FISA meet COMINT

Based on the New York Times story
on December 18th there has been a large amount of discussion of
electronic surveillance that includes messages to and from people in
the United States and people abroad. This surveillance has been
directed by the President and arguably violates FISA (the
Foreign Intelligence Surveillance Act) because it includes surveillance
of people who may be United States citizens or those with alien resident status. FISA requires warrants for surveillance of
such "United States persons" .

The law is complex. The best discussion,
necessarily based on assumptions, of the legality of the actions
is that by Prof. Kerr on the Volokh Conspiracy blog in which
he concludes that the President probably has the constitutional
authority for such surveillance but probably violated the statute
in doing so.

Two questions have been repeatedly asked:


(1) If the reason for avoiding FISA was needed speed, why didn't the
Attorney General use his emergency power under FISA (Sec. 1805(f)) to
first start surveillance and then, within 72 hours, apply for a warrant?



(2) If FISA did not supply needed procedures why didn't the
administration seek amendments immediately after the September 11th
attack?



COMINT is the military acronym for "Communications Intelligence" . COMINT is the interception and analysis of enemy communications.



The methods of surveillance that are assumed by FISA are substantively
different than the methods used by COMINT. The two have little connection.


As a result the real underlying dispute about the President's order is
not a legal one but a political one that comes up repeatedly in regard
to the "Global War on Terror" -- are we at war or are we engaged in law
enforcement of an unprecedented scale? In that regard the Attorney
General and President's pointing to the Authorization for the Use of Military Force as the source of their authority is apposite, for it is the functional equivalent of a declaration of war.



In my discussion, I rely only on historical sources, and well
known facts. I will only note that several comments by those who
know something of the current program refer to "new technology" in
regard to it. That new technology and its capabilities is
probably the core of why the program is extremely secret.



FISA has a base assumption that investigators have identified a
particular person or group as being of interest. The
investigators then decide to place this person or group under
electronic surveillance. FISA sets standards for when oversight
of a court is required , what level of suspicion is needed, what
measures should be taken to protect the communications of people not
the subject of the warrant, how long the surveillance may be
maintained, etc.



COMINT normally operates by vacuuming up every piece of communication
feasible and nalyzing the body. The communications are
analyzed for patterns and for key characteristics.



Possibly the best known example of COMINT occurred during WWII in the
Pacific Theater in the Battle of Midway. Cryptanalysts had partially broken the Japanese codes,though any individual message required considerable work to analyze.
U.S. listening stations picked up and collected Japanese radio communications.
Every radio message intercepted was kept. Analysis of
small clues in various other wise pedestrian messages indicated that
a Japanese offensive might be directed at a place named "AF".
The clues included the loading schedule for a freighter, a future
address for a squadron, and a patrol area for submarines. Suspecting the
location might be Midway, the cryptanalysts arranged for the deliberate
sending of a message in the clear about a break down in the
desalination plant on Midway. They had their guess confirmed by intercepting a subsequent Japanese message that "AF" might be short of fresh water.
An intercept in Melbourne of a message that contained AF and the
Japanese code for "attack" was recognized as possibly significant by an
operator there. The combined efforts of cryptanalysts at several
stations on that message eventually yielded the plan of attack. The end
result was the concentration of the American carrier force by Nimitz
despite a Japanese feint to the Aleutians, and an American victory of
strategic importance.



Note some of the key factors. All messages possible were intercepted were and were archived to be available for present and
future analysis.. The significance was not known without detecting a
pattern in the messages. Messages between different parties
yielded clues. The timing of the messages was important.



Now let's put these factors in a modern context. I assume that we
currently are intercepting every message that we can that are in, to,
or from areas of interest such as Southwest Asia. That we have
that capability seems likely given what we know of a global signal
interception operation known as Echelon.
That is a huge volume of messages. These messages are in turn analyzed
by computer to find patterns , e.g., if we had a firefight in Pakistan
is there a message with the word "doctor" in that area soon after or,
if we captured an important Al Qaeda operative is there a
pattern of messages after the capture similar to that when we
previously captured someone important. Those patterns, and many
others, will in turn yield further patterns. If phone X was
involved in one of those patterns, with whom else did phone X
communicate and when? Did phone X communicate two years ago when we
know there was planning for an operation? Whom did those phones
communicate with and did they communicate with other phones that turned
up in other patterns?. Eventually the messages determined to be in
those patterns will be read by a person.



Such a method of surveillance is the reverse of what FISA envisions.
Frequently, rather than starting by having a person in whom
investigators are interested, all messages are analyzed to determine in
whom we should be interested. The analysis does not depend on
starting surveillance prospectively from a point in time, rather it
depends on being able to see a historical pattern. In the area of
electronic surveillance, war is different from law enforcement.



The two questions I alluded to previously about FISA: (1)why not use
the 72 hour emergency provision to get speed, and (2) why not amend
FISA are thus off the mark because of implicit assumptions. The
base operating methods of what is envisioned in FISA and what is
normally done in COMINT are totally different.



This ultimately, I think, is why the administration chose to rely on
the President's Constitutional authority to conduct war, and Congress's
"declaration of war" in the Authorization to Use Military Force. If we
are at war, it is as inapposite to try to determine whether the details
of FISA were or were not complied with, as to try to determine whether
the Abrams tanks of the 3rd Division meet EPA regulations for gas
mileage.



The underlying problem-- are we at war?-- reflects not a legal question but a political one.




.

A Social Security Solution

So here is my proposal.

For anyone who reaches retirement age and continues to work without drawing social security, no taxes (social security, federal or state income) on any earnings up to the maximum amount normally taxed under social security.

This would provide a powerful incentive to continue working. For 2005 the social security maximum taxable income is $90,000, so essentially one could earn up to $90,000 tax free, a benefit worth perhaps $20-30,000.

The cost to the state and federal governments of the foregone taxes would be nothing, were the person likely to quit working absent the tax rescission. If he quit, there would be nothing to tax. The gain to the social security system would be that it would not need to pay out social security until the person finally quits working.

There would be a cost to the government in one respect. Some workers currently work past retirement age, and the goverment would lose taxation of the their income up to the social security cut off. Still the loss seems likely less than the overall gain. The average age of retirement is currently about 63 and a half.

Sure, it would need some fine tuning. For instance, ought the rescission of taxes be at age 62 or age 66, or partially at 62 and fully at 66? What about Medicare? Should the person pay taxes on any income above $90,000 at the same rate he would have paid absent the tax rescission?

But the basic trade is a sound one: fewer social security payments in return for no income tax. The beauty is that it trades something that would not exist absent the incentive -- taxes on income from continuing to work-- and thus doesn't have a negative affect on the government.

What might older workers do with their added income past age 62? Well perhaps they should save it for when they do retire. A part of any plan ought be a generous IRA or similar provision to encourage saving their extra income.