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.




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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.

Remarkable Agreement on Iraq ... and Disagreement

If we put aside the extremes, there is remarkable agreement on Iraq policy from both the left and right. The end goal is to have a stable democratic Iraq. The means to achieve that goal is to build up Iraqi institutions, particularly the police and military. As those institutions become more capable, we will withdraw our presence.

So why all the "sturm und drang"?

The critical question for many politicians is simply: who will get the credit?

A clear Bush "victory" in Iraq would be devastating for the Democrats.

Thus the loud demands that he do what he is doing, all the time pretending that he is not doing it, and were he doing it, that they could do it better as he is doing terribly at it. For some, there also is a willingness to see if they keep him from doing it.

No one is willing to admit that the basic plan is the same for almost all responsible politicians.

Moral Values?


A small plurality of Bush voters (35%) named "moral values" as the most important issue in the election in the exit polls. As a result buckets of electrons and ink are now being splashed to say that gay marriage, abortion, and the Christian right were the significant factors in the election.

I wasn't polled. Had I been, I would have also answered "moral values". But not because of gay marriage, abortion, or Christianity. I tend to be a strict constitutionalist -- those things are not the affairs of the federal government.

However, I want my president to be what my father would have called "an honorable man". That implies a lot of things -- but at least one of them is honesty.

At some point near the end of the campaign, someone said in response to a claim that Bush was mixing church and state , "But what about Kerry? He is going to all those black churches and campaigning from the pulpit, talking about being an altar boy, and all that stuff..."

The reply was "Yeah. But everybody knows he doesn't mean it." I agreed with a chuckle. So did everybody I related the story to.

I would be happy with an atheist as President, an agnostic, a Jew, a Catholic, a Moslem or a tub thumping Baptist. A Wiccan might be stretching it. But I want them to be honest about it. No pretenses. That's a moral value. Bush had it. Kerry didn't.

Doing what you say you will do is also a moral value. So are small things like courtesy and manners. Those who do not think that Bush's response in the debates to the "strong woman" question did not reflect moral value missed something.

I suspect "moral values" meant something else to the respondents to the poll than what the political mavens are now making them out to be.

Which group of voters had "moral values" as their most important issue by a large margin -- in fact a majority (57%)?. Nader voters. I don't think that they were reflecting on gay marriage, abortion, or Christianity.

Perhaps We Need Salutes?

The fuss about whether or not Pres. Bush, or his administration, did or did not say the words "imminent threat" in regard to Iraq indicates that we failed to resolve an issue in the Fall of 2002 when Congress passed the Iraq resolution.

You will recall that opponents of the resolution asserted that Iraq was not an "imminent threat" and thus no military action should be taken. Sen. Carl Levin comes to mind as possibly the first to prominently use the phrase. The administration's counter was that "imminent threat" was the wrong standard for when the United States should act, a view later summarized in Pres. Bush's State of the Union address in January 2003:

" Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option."

I am not sure we know when a threat is "imminent", but if it need not be "imminent" before we act what is the standard?

Take for instance Japan and the United States at the beginning of our entry into WWII. Clearly we had to act when the Japanese attacked Pearl Harbor. Positing our knowledge of the location and actions of the Japanese, should we have acted when the Japanese carriers launched aircraft near Pearl Harbor?? When the carriers passed some magical line, say 200 miles from Hawaii? When they sailed from Japan? When we intercepted Japanese messages detailing the defenses at Pearl Harbor? When Japan left the Washington Conference Treaty in 1937 and began to build up its naval power?

The problem is that even if one were to have a very clear idea of physical facts -- military movements, weapons programs, readiness states -- the only definitive evidence is likely to be in a secret coded operational order that marries intent with capabilities. Our intelligence did not do well on the physical facts in Iraq, let alone intent. Indeed, the entirety of our last hundred years of history suggests that our intelligence has never been good prior to war on the issue of intent, and only somewhat better on the issue of physical facts.

From the 16th century into the 19th century, there was a somewhat similar problem in Europe. Naval ships had the ability to circumnavigate the globe, and were becoming instruments of power projection able to attack increasingly important commerce and colonies. Communications had not significantly progressed.

As a result the visit of a ship to a foreign port was ambiguous. Was the ship, traveling as fast as news, aware that war had been declared while forts at the harbor mouth were not? Was it a friendly visit, or would it once past the fort guarding the mouth of the harbor begin to bombard the town. Similarly, when two ships meteachat sea, captain grappled with the question of whether the opposing ship had more recent news of peace or war than he did.

The history of the period has a number of incidents of mistaken engagements: ships at peace fighting one another, one ship gaining advantage over another because it knew war had been declared, colonies seized after the cessation of hostilities and so forth.

To reduce the problem the European powers came up with a series of formalisms. The salute was one. A ship meeting another ship or entering a harbor with a military installation would salute the foreign flag by firing its cannon. Given the extensive time to reload early in the naval cannon's history, and the short effective range of cannon, the salute was a very clear statement that "I am now rendered harmless".

Though relying on a code of behavior rather than physical constraints, the later custom of flying the flag of the country possessing a port when entering the port, was a similar statement. It was more or less a gentleman's statement that "we are not at war".

Perhaps we need something similar today. In the age of WMD, an obvious possibility is weapons inspection. Of course, that assumes that the failure to allow adequate inspection would itself be a casus belli.

Why They Hate Us

A significant source of attitudes about the United States is foreign students who were educated here. According to the Institute for International Education, there were slightly over a half-million foreign students in 2002-2003. 34, 000 of these were from the Middle East.

The leading universities in foreign student enrollment were:

1 University of Southern California
2. New York University New York
3 Columbia University New York
4 Purdue University Main Campus West Lafayette
5 University of Texas at Austin Austin TX
6 University of Michigan - Ann Arbor
7 University of Illinois at Urbana-Champaign
8 Boston University Boston MA
9 University of Wisconsin - Madison
10 The Ohio State University Main Campus
11 University of California
12 University of Pennsylvania
13 Florida International University
14 University of Maryland College Park
15 Texas A&M University College Station
16 Penn State University Park Campus
17 SUNY at Buffalo
18 University of Florida
19 Houston Community College System
20 Indiana University at Bloomington

What will those students have been taught about American History and Politics?

They are likely to have been taught that the United States was founded on racism, expanded through genocide, maintained through political repression with a foreign policy of imperialism and belligerence, and an internal economic policy of class distinctions, oppression, and exploitation of workers

There are of course, other influences. For instance , Hollywood is a principal describer of America available abroad......

Well, perhaps it is understandable why they tend to hate us.