As published in the

Pasadena Star-News - January 11, 2006

San Gabriel Valley Tribune - January 11, 2006

Whittier Daily News - January 11, 2006

Will America tolerate illegal spying

on its own citizens?

by

Gerald Plessner

January 11, 2006 - IMAGINE for a moment that you are somewhere in rural West Virginia or Pennsylvania. You are in the cab of one of those huge excavating machines that remove the tops of mountains to get to the coal beneath.

You are mining for anthracite, hard "clean" coal, the kind that burns more efficiently. But there is a lot of bituminous coal, the soft "dirty" kind, mixed in with the other stuff in each house-size scoop of your shovel -- soil, rocks, maybe some other valuable minerals. (If you are a mining engineer and my story is less than technically accurate, please cut me some slack.)

When the coal gets loaded onto train cars it heads off to generating plants which use it to produce electricity. During its use, it creates other things, by-products like ash and pollution and perhaps some useful products too.

Now imagine that you are a manager at the National Security Agency --- the NSA --- and you are in the control room of a huge system that mines the atmosphere around the earth, snatching words and phrases out of the thin air where wireless communication floats. Billions upon billions of words. Whole mountains of words all day long.

Your excavating equipment is designed to pick up certain words said by certain people, but there are some inevitable by-products. While searching for well-defined targeted information, your machine has to scan every message it passes and that includes private telephone calls by people of no interest to the government.

For the lay-person, it's hard to imagine that everyone's electronic communication, including the old-fashion telephone call, probably travels through the atmosphere even for an instant, and is available for processing. And that is probably true of every e-mail as well.

It's called data mining and, as brilliant and as well-intentioned as its creators may have been, it is probably impossible to separate the anthracite(clean) data from the bituminous(dirty) data because it has to scan all communications to protect us as much as possible.

What's more, because much of the data comes from cell phones which by law now contain a Global Positioning Satellite(GPS) chip that broadcasts the location of the message sender (so the highway patrol can find you in an accident), the huge data mining machine produces the name and location of every message sender. (I wrote about this in October 2001 and you can find those comments at http://www.geraldplessner.com/articles/article.cgi?doc=20020629180037)

Just as we need good clean coal to keep us warm, we need good clean intelligence to keep us safe. But at what price, under what kind of oversight, and at what cost?

Those are the kinds of questions raised by president George W. Bush's approval of secret spying that may invade the privacy of innocent Americans who have no involvement whatsoever in anything illegal or dangerous to America.

The problem created by the president's having approved that spying outside of laws meant to regulate it, is that it creates a host of issues with broad implications and unintended consequences.

Writing on the Huffington Post website, Martin Garbus raised a number of those problems. Here are a few:

In any trial or proceeding resulting from information gained through data mining, how does the government justify intruding on billions of conversations between innocent citizens who are not even suspects? Will the government answer such questions or will it refuse to answer its own citizens? And if so, what will that do to citizen trust in government?

Won't there be thousands of civil lawsuits from individuals or groups contesting the government's actions and their intrusion on the privacy of innocent citizens?

When criminal cases are filed based upon information gained through data mining, won't defendants be entitled to view the evidence against them? The government will surely contest such access but won't that tie up our courts for years?

Won't defendants in other national security cases be entitled to see documents that might contain their name? Or will the government refuse access on national security grounds, causing an additional massive court caseload?

At the beginning of his term, the president signed an Executive Order making all of his and his father's papers privileged. In effect for 12 years, it can be extended by the president, or in the case of his incapacitation, any interested person, such as his wife. The order also extends privilege to the Vice President's papers, granting executive privilege to the vice president, an unheard of precedent.

This means that the president and vice president will be immune from accountability for their actions from the first days of their administration and almost to eternity.

But the real question may be whether the Bush presidency can survive if the American people turn against secrecy and surveillance.

About the author: Gerald Plessner is a Southern California businessman who writes regularly on issues of politics and culture. He would be pleased to hear from you and may be contacted at gerald@geraldplessner.com.