[Intelforum] Bush's Warrantless Wiretaps (2)

[Rocco R Rosano]

Mr Levin, et al,

My contribution to the discussion was not meant to be a "legal" analysis 
(at all); but thoughts from a career (retired) CI Agent 
(Counterespionage); and just having returned from Iraq.

LevinMJ at aol.com wrote:

> In a message dated 12/21/2005 9:31:03 AM Eastern Standard Time, 
> prosano at insight.rr.com writes:
>
>
>     George W. Maschke wrote:
>
>>I think that the whistleblowers who revealed this illegal domestic 
>>surveillance program to the press are to be commended, not condemned.
>>
>  
> I believe that neither Mr. Maschke nor Mr. Prosano, who answered with 
> an extended legal analysis of the intelligence tasking under 
> discussion, have gotten to the issue of damage to the national security.
> The person who revealed the existence of this program to the press was 
> not a whistleblower. A whistleblower is a person who reveals 
> unclassified information concerning official wrongdoing, waste, fraud 
> or abuse. This type of revelation is legal; it is in fact protected by 
> law. Often whistleblowers are proud to provide their identification.

(COMMENT)

It is almost irrelevant as to whether or not the disclosure was 
protected under the strict definition of the Whistleblower Act; or not.  
But Mr Levin is quite right when he points to the National Security as 
part of the issue.  But it is only part of the issue.

> In a message dated 12/21/2005 9:31:03 AM Eastern Standard Time, 
> prosano at insight.rr.com writes:

> In the case at point, an individual with access to classified national 
> security information leaked information to the press. This action was 
> a criminal violation of the law. Anyone who further disclosed this 
> information publicly should be considered an accessory after the fact.
> Note that in this case the leaker hides under a cloak of anonymity.

(COMMENT)

There are two sets of laws that may be in conflict, and two (2) 
competing issues at hand.  Those were the issues I was trying to bring 
into the light.

First, the discovery that the US attempts to intercept such 
communications (SIGINT) is not such a great SECRET; at least with the 
terrorists that are connected with al-Qaeda or any of the major Middle 
Eastern terrorist groups.  Nor is it a SECRET among any of the G-8 
nations.  But we have recovered al-Qaeda training manuals (years ago) 
that taught telecommunications countermeasures (COMSEC).

Second, the disclosure does NOT, necessarily, give the opposition any 
distinct advantage.  In fact, the heavy reliance on SIGINT returns is 
often a disadvantage to the US Intelligence Community (IC) and we know 
that the opposition can and has used it to mislead or misdirect 
operations.  Because the method and technology is so highly classified 
(in many cases over classified) there it tends to give more weight to 
the veracity. 

> In a message dated 12/21/2005 9:31:03 AM Eastern Standard Time, 
> prosano at insight.rr.com writes:

> Now, to the issue of damage to the national security. The surveillance 
> program involved one of the intelligence community's most sensitive 
> and fragile sources; signals intelligence. History has shown us that 
> each time the press has a field day, such as the current one, on 
> SIGINT operations, ---target individuals, groups, or, countries will 
> review their communications security and make necessary changes. Often 
> the changes made may eliminate a critical intelligence source and 
> blind us to an incoming attack.

(COMMENT)

There is no question that SIGINT, in its traditional applications, is a 
critical element to the overall intelligence effort; but! it is only one 
of several disciplines.  The over reliance on SIGINT was probably a 
major contributing factor in the lack of development in both tactical 
and strategic assets in CI and HUMINT in the years.  Too much reliance 
on national technical assets and too little competence in CI and HUMINT 
lead the National/Military Decision Making Processes to deductive errors 
in pre-WOT project and programs.

The crippled leadership in both military and civilian intelligence 
agencies in dealing with the uniquely human aspects associated with 
HUMINT and CI, over the decades, has damaged the national security of 
the United States.  While there may, or may not be actual anecdotal 
evidence of disrupted SIGINT efforts as a result of disclosure (and the 
one often used - with Osama bin Laden's cell phone is misleading), it 
does mean the sky is falling or that exceptionally grave damage was 
done.  In fact, the disclosure, it self, may in fact be a deception 
operation (you never know).

> In a message dated 12/21/2005 9:31:03 AM Eastern Standard Time, 
> prosano at insight.rr.com writes:

> So, if anyone wants to encourage their Congressmen or Senators to 
> review the legality of the subject program, fine. But please do it 
> quietly and insist that the review be done in closed session.

(COMMENT)

Ah, the meat of the subject.
If the action (the SIGINT effort - whatever its scope and dimension) is 
totally "legal," then there would be NO controversy.  But, it appears 
that this is not the case; it is not cut'n'dry.

Is there probable cause to believe that a commission of a crime is in 
progress, the violation of which is punishable as a felony?  Yes, there 
is probably cause.  If there were not, then there would be no need for 
the hearings.

The legal wrangling is for higher minds than mine.  But if you were 
faced with the decision to disclose or not, what would you do?

If I understand your proposition correctly, it states that you would 
hide the probably cause of the felonious activity (18USC 371 - 
Conspiracy to commit offense or to defraud United States) because the 
activity was classified; knowing that the democratic concept of 
classification has a limitation.

    QUOTE from Section 1.6(a) LIMITATIONS ON CLASSIFICATION, EO 12356:

    (a) In no case shall information be classified in order to conceal
    violations of law, inefficiency, or administrative error; to prevent
    embarrassment to a person, organization, or agency; to restrain
    competition; or to prevent or delay the release of information that
    does not require protection in the interest of national security.

This is a type of argument wherein the "ends justifies the means."  
Should members of the Intelligence Community (IC) adopt this type 
philosophy?

This is really what the controversy centers on.

Most Respectfully.

>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists101.his.com/pipermail/intelforum/attachments/20051226/2a190747/attachment.html