JAMES RISEN: Don’t you think, though, that one of the problems the administration now has is that if they don’t work with Congress to modify FISA anytime soon and if the legislative work stalls, that the courts will have no choice but to deal with this as being outside FISA and that there will be legal challenges that will then be more damaging to the administration than it would be if they dealt with Congress on this?

BOBBY RAY INMAN: Absolutely, and this is really going to ultimately attest whether the President walks away from the Vice President on this issue. If they elect to work with Congress it’s because he finally decided he needed to move into . . . (laughter)

From page 20 of transcript of:

LISTENING IN: EAVESDROPPING AND THE NATIONAL SECURITY AGENCY.

PATRICK RADDEN KEEFE, JAMES RISEN, BOBBY RAY INMAN AND JEFFREY ROSEN, MODERATOR

MAY 8, 2006

South Court Auditorium, The New York Public Library

Other excerpts I found interesting copied from the above PDF transcript:

JEFFREY ROSEN: That’s very helpful, and I will ask you later what a statute regulating this program might actually look like. But I want to ask Patrick Keefe. The Admiral has offered an extremely modest defense of the program. On an emergency basis, it might be useful. So what’s the problem with allowing for warrantless surveillance on an emergency basis? Civil libertarians give lots of hypothetical nightmare scenarios but no concrete examples of abuses. Why should we actually care about this program from a privacy perspective?

PATRICK KEEFE: Well, I think that the—it’s interesting that the Admiral mentioned that one of the things that was going on was not so much necessarily listening in on particular calls as looking at who was being called. And I think that it’s easy, when we say wiretap or eavesdrop. There’s a misconception which is that you have kind of 50s-era G-Man in a trench coat tapping a particular wire and listening to all of the phone calls that are happening there, and I think what is going on quite possibly in this program and certainly in others that the NSA is employing, is more of a sort of a mile wide and an inch deep in terms of the approach, so it’s not necessarily that you have actual agents or even computers sifting through the actual conversations and correspondences of tens of thousands of people, a lot of the time it’s what they might call “link analysis” or “data mining” so in fact what you’re looking is traffic patterns and the aggregate patterns of who’s calling who.

So there’s a threshold question, which if you’re working for the NSA, you have to answer, which is, “Who in fact should we be listening to?” And one of the ways that they’re going about that, we know, is through these various sophisticated software algorithms, that say you have, in the President’s effective if slightly disingenuous phrase, “If Al-Qaeda is calling you, we want to know why,” so say you have Al-Qaeda calling you, it’s not just that we want to know why, we want to know who else are you calling, and you move out a degree of separation, and “Who are those people calling?”, and you move out a degree of separation, and “Who are those people calling?”, and I think when you look at it in those terms it actually becomes fairly understandable why you couldn’t apply for FISA warrants for each of these instances, because you’re talking at two or three degrees of separation, you’re talking about tens if not hundreds of thousands of people.

Having said that, from a privacy point of view, I’m not sure that that’s as unsettling as it might initially seem, because I’m personally less upset at the notion that somebody might look at what they call the metadata on an e-mail of mine, so to, from, subject, date, time. I’m less bothered by the idea that a computer might sift through that, looking for patterns, than I am by the notion that somebody might actually listen in on my conversations or read the substance of my e-mail.

That said, the problem with this, I think, and it’s both a problem from the privacy point of view and also from a pragmatic point of view if you are trying to figure out who Al-Qaeda is calling, is the problem of false positives. That, say you do have that call from Afghanistan to New York City, and you do start working out by degrees of separation, it just stands to reason that, even if you have a terror cell in the United States, a lot of these people are going to be communicating with people in a perfectly innocent way. It could be the person you rent your apartment from, it could be somebody that you know on your job, and once you start working out, people get kind of ensnared in that associational web, and I think that that is a real danger and we know, for instance, there have been pieces in both the Times and the Post, saying that that the NSA would use this program to generate tips, that’s how you basically have leads, and in many cases those leads would be given to the FBI, and the FBI would actually send people to chase down these leads and find out where the substance was. And the vast majority of these leads ended up being dead-ends to the point where it was actually a joke at the FBI that when they would get a new batch of tips from NSA, they would say, “More calls to Pizza Hut.” (laughter) Which to me, if you’re the guy at Pizza Hut, and Al-Qaeda’s not calling you, that’s troubling from a privacy point of view.

BOBBY RAY INMAN: This really does let us zero in on why this whole new world of international terrorists, which are not often state-controlled or state-supported, has become much more complex, when we worry about attacks inside the country. I spent twenty years of my life out supporting operating forces, looking for indications and warning possible attack, and you sort through hundreds to thousands of fragments, looking for any lead that might—and, frankly, your intuition to connect them is often the difference.

It doesn’t surprise me at all that the FBI thought that these were useless. They’ve never been in the indications and warning business. They’re a wonderful part of our judicial system to carefully assemble evidence, to protect it from being tainted, leading to indictment, prosecution, jail. Nothing in that talks about warning. And suddenly they have this flood of the kind of tips that military intelligence people have been accustomed to working with in an entirely different light for years and it’s a lot of work to run down and discover that maybe one or two have some utility, but if those one or two turn out to be a Mohamed Atta and the rest of it, then it will have been worth the time.

JEFFREY ROSEN: Isn’t that a good response to the problems with false positives? You can have remedies for people who are wrongly identified, if you catch one or two terrorists, that’s fine. It’s not a privacy objection, though. What about the problem of privacy? The most concrete criticism I’ve seen of the program is that it might raise something along the lines of the Nixon effect. Basically, just as President Nixon wanted to retaliate against his critics by auditing their tax returns, so this administration could, and some suggest, have, looked at the data of its critics and threatened them with retaliatory prosecution. Is that a danger separate from the problem of false positives?

from pages 7-10

JAMES RISEN:....And I think that frankly the legislative action has been quiet, but it’s actually taking some steps forward. The Senate Intelligence Committee has created a special subcommittee, after a lot of gnashing of teeth, to start formal oversight of the program. It’s got both Democrats and Republicans on it. The House subcommittee, the House Intelligence Committee, is attempting to do some oversight of the program, as well, and you’ve got the Senate Judiciary Committee has held some hearings and there’s several attempts within the Senate now to fashion some legislation to bring this within FISA. I think my newspaper’s editorial was, “It’s as if you got caught speeding and then the state legislature’s changed the speed limit to accommodate you,” but then that’s part of politics. So I think that then essentially the Bush administration made a political mistake in 2001 by not going to the country with this in the first place because I think, I remember I’ve told this to the people in the Bush administration, “If you had asked for this you would have gotten it.” And I think that was their big mistake.

BOBBY RAY INMAN: But the advice they got from a very senior Democrat, was that he couldn’t get it through. Now, that wasn’t from the Bush administration, that was from the director…

JAMES RISEN: Right. Right. No, I know, I know they’ve said that, but I—

BOBBY RAY INMAN: …and the very senior Democrat, their response was, in this current climate, I could not get it approved without running the risk to the entire program. I don’t happen to think that’s valid…

JAMES RISEN: I don’t either—

BOBBY RAY INMAN: …because when you look through the details, we never had a public hearing on what the FISA court was going to cover, it was all done within the select committee, and the rest of Congress accepted.

JAMES RISEN: You know better than I do that Congress deals with secret issues all the time…

BOBBY RAY INMAN: Absolutely.

JAMES RISEN: …and there is no reason, even if what they could have done is to generally discuss this publicly, saying we are now modifying FISA, we are going to broaden our scope of surveillance, they didn’t have to get into all the details. They could have changed the law, and nobody would have had a problem with it.

from pages 12-13

JAMES RISEN: I think what it shows, though, is the CIA is now permanently a back-bencher. It’s kind of formalizes what’s been going on the last couple of years is the CIA—the Bush administration and the White House in particular hates the CIA, with a passion for, really the wrong reasons. They came to the—the Vice President and Rumsfeld and a number of other people at the White House came to the conclusion a few years ago that the CIA was filled with liberals who hated—who were antiwar, and they just really never understood the CIA and they never really tried to understand it, I don’t think. And they managed under Goss to essentially break the spirit of the place, and now what really, I think what Hayden’s—as the Admiral said, Hayden and Rumsfeld hate each other, but really Hayden is Negroponte’s person, Negroponte the DNI, this consolidates the view now, the position now, that the CIA is essentially a deputy to the DNI, and it helps consolidate Negroponte’s standing while he then has to have a fight with Rumsfeld.

BOBBY RAY INMAN: And just for the record, testimony I gave in January of ’96, I proposed exactly this kind of change, except I would have gone much further, and that was because I was persuaded at that point that CIA was already a broken agency, and unless you separated the collectors from the analysts, you would never get an honest analyst approach because they were always under pressure to make the clandestine collectors look good.

from pages 14-15, following this question on page 13: "JEFFREY ROSEN: Admiral, tell us about General Hayden. Everything."

JEFFREY ROSEN: But James Risen, you remain optimistic that Congress finally will assert itself. What sort of regulatory regime do you think—

JAMES RISEN: Well! (laughs)

JEFFREY ROSEN: You were inspiring on the question, actually. (laughter)

JAMES RISEN: I didn’t mean to be that optimistic. I think, well, look, they have to do something. Something has to give here. As I said, they can’t just say, “Okay, this is illegal but we’re going to let it keep going,” because the courts will force the issue at some point, I think. And so it may be slow motion, it may take a long time, but I think my own gut would tell me that what will happen is that they’ll find a way to adapt FISA to accommodate this program and maybe they’ll adapt the program a little bit to accommodate FISA. Maybe there will be some compromise on both sides. I just can’t see how they would not do that at some point.

from page 22

JAMES RISEN: I just think that now that it’s public, it’s going to be very difficult for them, it’s much harder for them to abuse it. That to me is, I feel like, we did our jobs, now everybody else can talk about it.

BOBBY RAY INMAN: All those people inside who are now aware, who will be looking for the signs.

from page 24

BOBBY RAY INMAN: Definitely. I take us one step further on the privacy issue. And ask the three of you which are younger and in this computer generation. Every time you get on your

computer and go browse the Web or elsewhere you leave a trail. A variety of people for business reasons know exactly where you’ve been, which sites you’ve visited, they keep records of it to come back. What is it a cookie that they put on to track? I wonder has this younger generation, simply knowing that that takes place, are they less sensitive on this issue of privacy than some of us old guys?

JEFFREY ROSEN: There are some very interesting polls suggesting that young people like to be naked much more than older people. (laughter)

JAMES RISEN: You may know this, but I heard, I did hear one of the things that was interesting. I’ve never confirmed this, but I’ve heard that within the NSA, among the very few people who knew about this program, there were some concerns, serious concerns, some people considered resigning, some people refused to participate in the program, and what I heard was that the people who were the most concerned were the people who had lived through the whole Church Committee period. And that it was the young people who said, “Oh yeah, let’s do that,” you know?

JEFFREY ROSEN: Patrick, our generation has been issued a challenge to defend the purposes of privacy. Take it away.

PATRICK KEEFE: Well, I do think that the—there is a sense in which technology definitely plays a different role in one’s life. During the Church Commission there might be a possibility that someone was intercepting your phone calls, or your international cables, but one lives so much of one’s life online now. This actually gets to what you were saying earlier about the idea that it’s not just conversations. It’s everything. It’s paying your bills, it’s your health insurance, it’s your work communications, it’s the music that you download. It’s all there, it’s all available, and in some respects I would think that that would make people more worried. But I certainly, I’m just thinking actually I gave, in this building, I gave a talk to a bunch of high-school kids about six weeks ago and gave them a very simplified version of this spiel and they all looked at me with sort of dead, uninterested faces and eventually I figured better to draw this to a

close and get into some Q and A, and the Q and A didn’t really go anywhere. And then eventually, I just said, “You guys just really aren’t worried, are you? I mean, are you worried, you’re all on the Internet all the time, you’re IMing each other, you’re worried that the government’s going to spy on you?” And total silence, and then this one girl raises her hand and says, “I’m worried about my parents spying on me,” (laughter) and this chorus of people agree, and suddenly we’re having this totally different, unanticipated version of the privacy conversation in this context of parents kind of looking over their shoulders at what they’re browsing on the Internet.

JAMES RISEN: Well, I think it gets back to that issue that you were talking about earlier about the metadata that’s available and I think that, to me, is the real danger here for the potential for abuse is that because people see that as being benign, that there are so many ways to manipulate that digitally, as you said, that we are in the process of creating a Big Brother that right now we think is benign but it’s—and it’s not just the government, you’ve got all these, you know, private data-mining organizations for commercial purposes—and if you combine all of that, it’s really difficult to foresee a way in which we can avoid kind of a Big Brother–type thing.

PATRICK KEEFE: And part of what’s unexpected about that and interesting is that the contest in a way, the sort of tradeoff that I always think of as between privacy and security, where you give up a little bit of privacy in order to get a little bit of security, I think that increasingly it’s actually a contest between convenience and privacy, that in order to live your life as a kind of fully developed digital person you’re willing to barter away all kinds of little privacies, not in the name of greater security at all but because it means you don’t have to keep reentering your password on the New York Times website. (laughter)

from page 26

Q: The panel hasn’t addressed—sorry—the question of whether this surveillance is actually effective. Terrorists today surely can use high-level encryption and all kinds of other tools that they can download from the Web very easily or other techniques. Does this stuff actually work?

JEFFREY ROSEN: Excellent question. Perhaps Admiral Inman could enlighten us.

BOBBY RAY INMAN: I really don’t know, is the answer. A lot of—if people know they’re being listened to, the narcotics dealers, they go buy the latest encryption and use it to cover their flow. People who think they can talk around the issue don’t think they need encryption. My key for people who were listening to voice communications—look for the one where they’re trying to talk around an issue and you probably have something that’s interesting in that process. Mistakes…encryption is not a complete answer. Human failings in how it’s used can end up making it very vulnerable for a quick computer attack. The best systems ought never to be broken, but they are broken from time to time purely because of human error in their use.

JAMES RISEN: I can tell you one other story of a similar thing. About a year and a half ago, two years ago, in 2003, you may remember there were stories that said that Ahmed Chalabi had revealed to the Iranians that the NSA had broken the Iranian code and was listening to their messages back and forth between Baghdad and Tehran and other places, and I wrote that story, along with other reporters, and that was when I first heard from Mike Hayden. He was still at NSA and he asked us not to write that story, too, but we wrote it anyway, and the thinking was “Well, the Iranians will surely stop using those codes as soon as the stories come out in the New York Times and CBS and elsewhere.” But a funny thing happened was that months later people at the CIA told me they’re still using those damned codes, and Chalabi was still talking in them. And the reason was it was really hard to change all your codes, it’s really hard to change your behavior, and the Iranians, I think, also didn’t believe Chalabi and they didn’t believe the American press either, so.

from page 28

PATRICK KEEFE: Just a quick word about encryption, too. Encryption could function as a bit of a double-edged sword here. If you are a terrorist and you are communicating and you want to go unnoticed, one way would be to encrypt your communications and another way would be to realize that the NSA intercepts several hundred million communications every day and that the sheer volume of the white noise may be safe enough to hide you. One interesting little footnote here is that the NSA actually took out a patent several years ago, which you can read online, for a technology that actually sorts through vast flows of information looking for stuff that’s encrypted, because think about it, I mean, one way to zero quickly in on what you’re after is to look for anything that comes across and is in code, to pick that out and it could very well be interesting and try and break it.

from page 29

Q: I’m wondering why the panel’s been so diplomatic about the question of whether or not the President committed a crime. He broke FISA law. That is apparently a felony and I haven’t heard the word “crime” by the panelists. It would be very refreshing to hear that.

PATRICK KEEFE: Crime. (laughter)

JAMES RISEN: Clearly this is, this program is, there’s a fairly broad consensus I think of legal scholars that this is in violation of FISA. When impeachment is a political act, as much as it is a legal act, and so if you have enough senators and enough congressmen who believe that oral sex

in an impeachable offense you can call it an impeachable offense. There are not enough senators and congressmen right now who are willing to call this an impeachable offense. It’s politics.

BOBBY RAY INMAN: It also, you’ve never had a test yet of the War Powers Act. There are scholars who still think that if ever became a case to the Supreme Court it would in fact be overturned, as an encroachment on the executive powers. And I think there’s some reluctance on some cases here. In my own view, this activity was not authorized by a resolution, “Use whatever force you need to do.” There clearly was a line in the FISA statutes which says you couldn’t do this. Was that a smart law, in retrospect? Well, throw the question back to you: If you had detected another terrorist, or somebody spreading anthrax, a week later, would you have considered that a crime?

Q: (inaudible)

BOBBY RAY INMAN: The court does not authorize warrants for this kind of collection activity. There was no provision in the bill we’re dealing with, we’re right at the thin edge here of the whole sources- and-methods issue. The fifteen-day didn’t apply.

JAMES RISEN: I think that the issue is that this is a potential constitutional crisis, because to declare that the President has committed an illegal act, Congress or the courts have to do that. I think he has, as you said before, he has confronted them with an act in violation of the law. Now, politically—it’s a political act for Congress to then stand up and say, “You are a criminal, you’ve committed a criminal act.” And that political act hasn’t happened yet.

PATRICK KEEFE: There was kind of a terrific moment, actually, in the hearings on this, the Judiciary Committee hearings, where the implacable Alberto Gonzales was asked by someone, “So, what couldn’t the President do? Is there anything that wasn’t authorized in this sort of broad grant?” and he said, “I’m not going to get into hypotheticals.”

from page 29-30

JEFFREY ROSEN: We have time for one more question. The gentleman in the back.

Q: Thank you. So Patrick described this four, five, six degrees of separation process of data mining. So my question has two parts. Can you draw a warrant for a thing like that? You’re not

saying “I’m going to eavesdrop on the pizza guy,” you say, “I’m gonna do data mining on hundreds of thousands,” what kind of warrant is that and what good is that warrant for us? What protection does it give us?

BOBBY RAY INMAN: The key is what you can do with the information that’s mined.

Q: (inaudible)

BOBBY RAY INMAN: Well, there are long-established minimization procedures that go back to the original, even before the original FICA act that specify if you come across information and you identify that one of the parties is a U.S. citizen or a green-card holder, then you cannot publish it, process, you suppress it from the files. There are exceptions. Agent of a foreign power. Clear criminal activity. Threat to loss of life. I had the misfortune of getting one of those on the president’s brother. I took it to the attorney general as the way to deal with it, in the process, and then Ben Civiletti dealt with it in a very straightforward and admirable approach, even though he got sort of torpedoed by one of his own underlings at a later stage. So you do have to count, and it’s going to be much more so in the world out ahead of us, as large volumes are in all kinds of databases. That for the government’s use, you have minimization procedures that are tracked, and here you count on the committee’s tracking.

JAMES RISEN: I think the real question that we’re going to have to — that the Congress and the government are going to have to face—is how do you bring—I mean, the devil will be in the details—how you bring this within FISA. Because the issue is you can’t go to the FISA Court and get a warrant with an algorithm.

BOBBY RAY INMAN: It’s going to have to be, as I tried to say earlier, after the fact, how did you use it, what did you intercept, what did you do with it. If you accidentally got anything on American citizens, what’d you do with that? So it’s going to have to be a judge examining after the fact what you got. It’s not going to be . . .

JAMES RISEN: And I think in order to do that they’re going to have to slow down this program, because I think one of the things they have objected to, why they argued they didn’t want to go through FISA, was because it was so large and so that’s a real question. Can they do this, what you just described, in a timely way?

from page 32-34

"Freedom to Write" By Orhan Pamuk New York Review of Books, May 25 issue. Full speech given on April 25 as the inaugural PEN Arthur Miller Freedom to Write Memorial Lecture at above link. Excerpt:

....to respect the humanity and religious beliefs of minorities is not to suggest that we should limit freedom of thought on their behalf. Respect for the rights of religious or ethnic minorities should never be an excuse to violate freedom of speech. We writers should never hesitate on this matter, no matter how "provocative" the pretext. Some of us have a better understanding of the West, some of us have more affection for those who live in the East, and some, like me, try to keep our hearts open to both sides of this slightly artificial divide, but our natural attachments and our desire to understand those unlike us should never stand in the way of our respect for human rights. I always have difficulty expressing my political judgments in a clear, emphatic, and strong way—I feel pretentious, as if I'm saying things that are not quite true. This is because I know I cannot reduce my thoughts about life to the music of a single voice and a single point of view—I am, after all, a novelist, the kind of novelist who makes it his business to identify with all of his characters, especially the bad ones. Living as I do in a world where, in a very short time, someone who has been a victim of tyranny and oppression can suddenly become one of the oppressors, I know also that holding strong beliefs about the nature of things and people is itself a difficult enterprise. I do also believe that most of us entertain these contradictory thoughts simultaneously, in a spirit of good will and with the best of intentions. The pleasure of writing novels comes from exploring this peculiarly modern condition whereby people are forever contradicting their own minds. It is because our modern minds are so slippery that freedom of expression becomes so important: we need it to understand ourselves, our shady, contradictory, inner thoughts, and the pride and shame that I mentioned earlier....

He's given me a dream: anti-ideologues unite in a majority anti-political party, with practitioners of ideologies free as birds to prosletyze but utterly marginalized, until, of course, they themselves gain enough life experience (or certain kinds of book learning) to happily join the majority anyways.

Reporter (once again free-lance) Christopher Allbritton outlines what he knows on the topic and what he thinks about those points, in a May 15 entry at his blog (still called "Back to Iraq") which along with giving Juan Cole a friendly chide about what he thinks may be Cole's naivete about Iran and Iraqi Shi'ites, concludes: "Hard-nosed power politics makes for strange bedfellows indeed." A very interesting relatively short post.

If you visit the home page there as well you will see that he has been working from Beirut at getting a journalist visa for Iran.