Cannonfire

Thursday, August 09, 2007

FISA, fantasy and facts

All over the net, one sees hysteria and myth-mongering concerning the FISA bill. This is but one example, from a writer who -- I guarantee you -- has never read the so-called "Protect America Act":

Would it be possible for those who listen-in on our phone conversations to gather non-terrorist related information, and pass it along to the appropriate parties?

The first thing that comes to mind is health-related discussions...

Many of you will respond with outrage to the points I'm about to make. You will probably do so without reading past the jump, where the evidence will appear. Nevertheless, I am going to attempt a rational discussion. After the outrage-junkies pillory me, they can amuse themselves by tearing out pages from Al Gore's book on Reason in order to create paper airplanes. They obviously don't intend to read the thing.

I'll present the info in Q-and-A format. If you care to correct or add to my answers, by all means do so -- but do your homework first. (That means reading past the jump.)

1. Cannon, are you defending this damned law?

No. I have argued that it is bad legislation and should have been opposed. I outline my views of the problems and the potential fixes here.

2. Does the new amendment to the FISA law allow Attorney General Alberto Gonzales to spy on domestic conversations without warrant?

No.

3. Does the new amendment to the FISA law give the current AG new powers to initiate warrantless wiretaps?

The AG has had that power since 1978. What has changed is the range of potential overseas targets. In my view, that range is now far too broad.

Another change involves this wording:

...there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

However, the original law elsewhere recognizes that acquisition of such information was inevitable. (You'll see what I mean soon.) In other words, the FISA act has always been confusing on this point.

4. Can the AG obtain records of conversations between foreigners and U.S. citizens?

Yes. And this presents us with a real problem. But contrary to what you have read, it is not a new problem.

5. You mean, that kind of eavesdropping has been going on since 1978, when the FISA law was passed?

Yep. The technology has changed, but the problem remains the same.

Now you know why a lot of people opposed FISA in 1978. The current solutions to this troubling issue -- the measures designed to make FISA constitutional -- are precisely the same as in the Carter era.

5. But if the administration can gather records on foreign-to-domestic communications without a warrant, can't the AG compile all sorts of data on American citizens?

No. No, no, NO.

At least, the AG cannot do so legally.

(His willingness to act illegally is another story, one which has no bearing on the wording of legislation.)

Here we must confront a rampant false impression. We hear repeatedly that Bushco can now listen in on your chats with anyone overseas. But no-one -- not even the "experts" -- have discussed the minimization procedures.

The new FISA bill specifies that these procedures will be in place every time the AG or the Director of National Intelligence interacts with a telecommunications company.

Why do pundits and "experts" ignore these procedures? The answer will be obvious to anyone who looks at the text of the amendment. "Minimization procedures" are mentioned, but not defined. For the definition, you have to go back to the original law -- which no commentators ever bother to do. And just to make matters worse, the numbering has changed -- 101(h) was originally 1801(h).

So nobody reads the damned thing.

You see, back in 1978, the same issue of foreign-domestic chats faced the framers of FISA. Then as now, eavesdropping on American citizens without a warrant conflicted with the Fourth Amendment.

Thus, legislators gave us the all-important concept of "minimization" -- procedures designed to strip away information regarding those on the domestic side of the chat. All such domestic information is supposed to be discarded within three days, except if the intel reveals an imminent crime -- for example, if Ken in Kentucky tells Francine in France about a bomb in City Hall.

6. But we can't trust Gonzales to follow those procedures!

I would not trust Alberto Gonzales if he were to say "Hello, my name is Alberto Gonzales." But his deviousness is irrelevant.

We are talking about the wording of a law which applies to more than one administration. The "minimization" wording is not in the new legislation; it's in the original act. So over the past 29 years, both the AGs you have liked (if any) and the AGs you have not liked have had to play by the same rules.

Remember, at least half the country is going to mistrust anyone who sits in the AG's chair.

Also, the update does stipulate that the AG has to offer proof to the FISA court that what he is doing stays within the law. I have previously argued that oversight should be much more stringent.

7. So you're saying that everyone is yowling about what's in this new bill, when we should all be screaming about what's in the old bill?

Yep. Look, as stated earlier, the new bill is bad legislation. It contains serious problems which must be rectified ASAP. But in my view, the fundamental issues go back to 1978. They only seem new because people haven't been paying attention until now.

I believe we should have a top-to-bottom rewrite of FISA, in light of both hard experience and new technologies.

8. But doesn't this new bill legalize the FISA violations committed previously by the Bush administration?

No. That 's why the Bush administration has not dropped the specious and outrageous argument that FISA -- in all of its incarnations -- no longer applies.

9. This whole business of eavesdropping on foreign-to-domestic conversations -- isn't that what Ashcroft and Comey refused to countenance? Isn't that the issue at the heart of that 2004 "race to the hospital" story?

We still have conflicting reports concerning just what that strange affair was all about. We know it had some connection to the so-called "terrorist surveillance program" (an after-the-fact label concocted after exposure of the administration's warrant-free eavesdropping). And we know that eight Administration officials were willing to resign over a very troubling problem arising from that program.

Simple logic tells us that whatever bothered Ashcroft and the others in the election year of 2004 went beyond eavesdropping on foreign/domestic communications related to terrorism. After all, that sort of eavesdropping had occurred before and since, and no-one threatened to resign.

drational at Daily Kos gets it:

Importantly the FISA update does not make purely domestic spying legal- the FISA update, along with the selectively declassified "TSP", involves warrantless wiretapping of US Citizens only when they are communicating with foreigners. Thus, the update almost certainly does not legalize the illegality Comey et al were prepared to resign over.

(Emphasis added.) I have argued previously that the same (relatively) new NSA technologies which make the so-called TSP possible were being used in 2004 to intercept purely domestic communications. Bushco may even have scooped up election-related data.

I admit that I am speculating. You may judge whether my speculation is fanciful or probable.

10. What do you mean, "new NSA technologies"?

Well, only the folks at NSA know what's really going on over there, and they ain't telling. But we have been graced with some vague, Delphic insights into the activities of the Never Say Anything crew. A key source is this oft-cited interview with former NSA man Russell Tice.

We're finding out that NSA conducted surveillance on U.S. citizens. And FISA could have been used but wasn't, was sidestepped. No one even made the attempt to see if they had a problem they could have fixed through FISA.

That would lead one to ask the question: "Why did they omit the FISA court?"

I would think one reason that is possible is that perhaps a system already existed that you could do this with, and all you had to do is change the venue. And if that's the case, and this system was a broad brush system, a vacuum cleaner that just sucks things up, this huge systematic approach to monitoring these calls, processing them, and filtering them—then ultimately a machine does 98.8 percent of your work. What you come out with from a haystack is a shoebox full of straw. Once you have that, you have people that can look at it.

Now here's an interesting question: If this approach was used, and hundreds of thousands if not millions of communications were processed in that manner, and then if and when the truth ever came out, a lawyer—and I think lawyers are going to be arguing semantics in this case—the argument could be made, well, if a machine was doing the looking and the sucking in, it doesn't matter because that's not monitoring until a human looks at it.

Here is my best guess as to what is going on:

The NSA has rooms in various telecommunications hubs, where all (all) data is intercepted and routed to ultra-massive-super-humungous computers back at headquarters.

"All" means all. ALL.

Does this "vacuum cleaner" approach conflict with the Fourth Amendment? Many of you would say yes. The NSA says no -- as long as mere machinery looks at the data.

Once the data is scooped up, it is sifted. How? I don't know. Ask the NSA -- or Russell Tice, or James Bamford, or Michael Hayden. Only Congressfolk have a chance at getting a straight answer, and even they may not be able to penetrate the NSA.

Once the haystack is whittled down to that "shoebox full of straw," it becomes the job of the Attorney General to "make things legal" after the fact. Sort of like marrying the farmer's daughter after you've gotten her pregnant.

The new FISA update concerns this after-the-fact legalization process.

The above scenario outlines what I think is going on. Re-read what Tice has to say and tell me if I'm right or wrong.

11. But -- if that's true, the entire FISA law needs to be rewritten!

BINGO! That's what I've been trying to tell you!

12. Why should we trust your views of this FISA update, Cannon? You are not a lawyer.

That's why I'm going to print the actual text of the law, at least insofar as it applies to the main points above. If sharper, better-trained minds can show where I've gone wrong in my interpretations -- great. I'd love to publish what you have to say.

But you can't show me up unless you're willing to do your homework. So follow the jump. Don't be scared. HIT PERMALINK BELOW.

Here's the part of the FISA law relevant to what I've written in this post. I've boldfaced the minimization bit, so you can't miss it.

ACQUISITIONS CONCERNING PERSONS LOCATED OUTSIDE THE UNITED STATES

* `Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that--

*
o `(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

*
o `(2) the acquisition does not constitute electronic surveillance;

*
o `(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

*
o `(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and

*
o `(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

And here are the minimization procedures from the original Act. This is the all-important material that the progressive bloggers have not bothered to read.

(h) "Minimization procedures", with respect to electronic surveillance, means -

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

Here is the proof that the original 1978 law gave the AG the same power to conduct warrant-free surveillance of foreign targets.

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

And just for jolly, here's the Fourth Amendment to the Constitution of the United States. Do the minimization procedures outlined above make the FISA act (old version, new version) all hunky-dory, Constitution-wise? You tell me...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

posted: 10:30 AM

22 COMMENTS - CLICK HERE

Comments:

I must admit that following all the legalese of this is a bit over my head. I guess your opinion boils down the the fact that this is bad legislation, but it's ok if our representatives voted for it? That the dems are just following the status quo until the entire law can be rewritten? Why not vote no on this and then also change the initial law?

posted by

Anonymous : 2:56 PM

If you are not defending the law then what are you doing? Making excuses for a congress we elected to do alot better than this?

This is a joke and you are a smart guy Joseph, so why not call a duck a duck? Its not just radicals upset. A badly written law should not have been passed.

Sounds more and more like you are falling into the trap every pol wants us in: who else ya gonna vote fo boy?

posted by

Anonymous : 3:31 PM

RESPONSE TO IDIOT #1

"I must admit that following all the legalese of this is a bit over my head."

Legalese? We are talking about a LAW here. I made things as plain as possible. A reasonably intelligent 14 year old could follow what I wrote. If you don't qualify, then the site you're looking for is here.

"I guess your opinion boils down the the fact that this is bad legislation, but it's ok if our representatives voted for it?"

Could you possibly be more of an fool? That is not my opinion and it is not what I wrote.

If you are mentally unable to follow discussion of the wording of a law, turn your attentions elsewhere. "The gosling should stay with the geese."

Apparently, you are so wedded to the sense of outrage you feel when you read those people who give you a false impressions of what's actually in the law, you would prefer not to be told the facts of the matter. This, even though I appended the relevant section of the law itself to prove what I am saying, and even though I open the floor to others who have done their homework and who can prove that I've made a mistake.

RESPONSE TO IDIOT #2:

"If you are not defending the law then what are you doing?"

Actually reading it, which lazy jerks like you refuse to do.

I'm trying to understand it. Trying to clear up the myths that have festooned around it. Trying to pinpoint where the real problems are and how to fix them.

And I'm also asking others to do this work and engage in an EDUCATED debate on what the law actually says.

"This is a joke and you are a smart guy Joseph, so why not call a duck a duck?"

All righty, let us do just that. You're a fool.

That is the official pronouncement of a guy we both consider smart.

posted by

Joseph : 4:57 PM

I will try again, but this time I will not try to raise your ire.

You agree that this isn't such great legislation. Ok, my thinking too. The big difference in your blog entries and comment posts, and my meager inclusions is that I consider the actual legislation to be less important than the actual political fallout whereas you focus on the language of the legislation.

I previously made a snotty comment about you justifying the Enabling Acts and now I will clarify what I mean (even though it remains a snotty, and not so defensible poke-in-the-eye): The language of the Enabling Acts limited the length of term for dictatorial powers, but in doing so provided political cover for the horror that became Hitler's Nazi Germany. The Nazis were trusted to not act like Nazis and stay beholden to the law, but their intention was to set precedent. That is, GAIN NON-DEMOCRATIC POWERS!!, and to keep them too.

Ok, so that must mean I equate all current politicians with Nazis, right? No, that is ridiculous and obscene, but it is an instructive bit of history when dealing with Authoritarians (that is Bush/Cheney). So, the legislation for the new FISA law meets all reasonable expectations, yet in doing so, it gives the bastards in the White House political cover to blur their abuses of the previous FISA laws and to push the boundaries even more. And they will use this as political cover, as will the right-wing noise machine. That is what I consider the main problem with this legislation. At this time, it never should have been allowed. I believe this will serve not to protect American citizens from unwarranted wiretaps, but will be used as a way to minimize the outlandish abuses of Bush/Cheney and the National Security State.

I am sure you could even write the script for such a turnaround, so why can't you see it?

No Democrat or supporter of them will ultimately win or be protected by this law.

Seamus

posted by

Anonymous : 6:18 PM

Thank you for your voice of reason. It's nice to read a clear-headed analysis of the whole thing. So please don't shut down your blog! You are needed!

posted by

Anonymous : 8:34 PM

Joseph, Thanks for posting this series on the FISA legislation. You are doing us a great service. I only wish more people were reading it.

posted by

dstockton : 8:41 PM

Thank you for the analysis. My take on the Tice comments and data mining is the same as yours. I hadnt followed the new FISA law so your analysis was very helpful to me. I hadnt appreciated the huge amounts of idiotic abuse you take on a regular basis, and as I result of seeing your unmoderated comments I am now far more sympathetic to your desire to quit. Please dont quit. The culture is gradually being strangled by these idiots. I appreciate how much work your blog takes but your many reasonable and thoughtful readers do appreciate your work. There will always be many more half-wits than reasonable readers out there. Dont give into their idiocy. If we all do, then there will be many more Ohios in the future.

Harry

posted by

Anonymous : 9:34 PM

Uncle Samentations

1. O how the Lost-Groove on the Potomac remains lonely! She has become like a Gulf War II widow pulled out of the system for processing. She that was great among the nations, a thousand points of light among the provinces, has become abortive, a bootless Protect America farce.

2. She weeps, yea, she weeps in the night; she has no comforter, not at Hot Military Studs, not at 349 Maryland Ave; the pure cast stones raging; “She has betrayed us! Her friends, now reasonably believed to be her enemies.

3. Decades of DU in the Tigris and Euphrates, the cause of affliction and pre-empted youth; But we settled, as Bill 98:12-16 cried out; “I have no doubt today, that left unchecked, Saddam Hussein will use these terrible weapons again,” [and] found no rest; all her pursuers took flight classes between her boundaries on pre-paid cell phones. Lord, why did her puppets turn on her?

4. The inner-roads of Zion are mournful; Snake Handlers, Revivlaists and Shakers look good on TV. All the heavenly gates are desolate, the priests do meth with male ho’s; reason shrinks. Boolean logic filters dissent, vacuumed up, untouched by human hands. Almost Kosher. And the multitudes blink; numbed aquiescent and pacified by Lindsay Lohan forgetting to wear panties.

5. Her adversaries have become the supreme court, who appoints the head, her enemies are at ease; for Diebold has afflicted her in case the multitudes from Rushhannities to OReileyanne can’t deafen the truth; her young children become bionic men. But can’t run fast, or jump especially high.

6. And gone is from the executive itself all splendor; and prince Richard were like harts who did not find pasture and wither; all vice and no heart. Still they take money from the Jew they despise.

7. Aipac is blind to our poverty and misery, only precious fairy tale from days of old; when She fall into the hand of karma, who will help her; the victims gazed, astonished, yet to weak to even gloat on her desolation. But who among Aipac hates FISA? And why?

8. [in strictly religious terms] JerUSAlem sinned grievously, became a wanderer; all who honor her modern reincarnation should be ashamed; moreover, she herself sighed and turned away.

9. Her uncleanliness are ballywhoo artists within, and yellow journal mind-swayers without. She was not mindful of opinion makers, and she fell astonishingly with none to comfort her. Behold, O Lord, my affliction, for 24 is going green, The Simpsons on big screen; Fox, my enemy has magnified himself.

10. The adversary was not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed, for she saw Mexicans enter her Sanctuary, to pick her tomatoes and clean her toilets. They gave away their power for real change by reacting to reactions of ill informed reaction. With no soul; see, O Lord, and behold, how I have become worthless.

posted by

Rev. Hillbilly : 10:16 PM

Harry

Yes, seeing the unmoderated comments here was quite an eye opener, wasn't it? It reminds me of when Governor Ronald Reagan opened the doors of the mental institutions and filled the streets of California with mumbling homeless people.

posted by

dstockton : 11:29 PM

According to the Constitutional-minded lawyers who debate this issue at Balkinization, it is not 105B that is so dangerous, but 105A:

Are New FISA Sections 105A and 105B Mere Window Dressing? Are They Constitutional?

Marty Lederman

In comments to a post of mine below, "Just an Observer" begins a very interesting discussion, joined by "occasional observer," concerning whether the certification procedure in new FISA sections 105B and 105C of the Protect America Act is mandatory or merely optional. JaO and OO have asked me to weigh in.

I don't have that much to add. JaO is correct, I think, that the certification procedure of 105B and 105C is merely optional. [UPDATE: But see the Notice DOJ filed today in the CCR v. Bush case in the Northern District of California, more or less stating that the 105B procedures are required. Hat tip to "cboldt.")] The only incentive the government has to use the procedure is in order to compel cooperation from service providers (telecoms, ISPs, etc.), and to give such providers some legal cover when they give assistance (although as JaO points out, the legal cover might not be much more than they already enjoy).

I don't think the Administration ever contemplated not using the procedure -- it's very beneficial to them and imposes very minimal burdens -- but even if they don't, I am not sure it would be a big deal, for two reasons.

First, in order for a surveillance program to fall within section 105B in the first place, it has to consist purely of acquisitions that are not "electronic surveillance" -- i.e., something that either wasn't covered by FISA already, or that is now not covered by virtue of the new carve-out in section 105A. So 105B and 105C do not provide any additional authorization authority for stuff that would otherwise be FISA-covered.

Second, the certification burden on the government is virtually toothless -- the NSA should be able to obtain court sign-off on the program without much trouble. See the final three paragraphs of this post. And as Orin points out today, even in the unlikely even the FISA court rejects a certification, the program would remain in effect unless and until the Supreme Court affirms that FISA court decision.

There is, however, one potentially important ramification -- in addition to losing the ability to compel service providers for assistance -- if the NSA chooses not to use a "certified" program under 105B and 105C: In that case, the NSA presumably would not have to follow FISA's minimization requirements, which would be required in the case of a certified program. FISA minimization (50 USC 1801(h)) would require:
(1) specific procedures, . . . reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information (unless the information is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes);
and
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance (with a similar evidence-of-crime exception).
Such minimization procedures might be quite important, and valuable -- yet they could be avoided if the Administration opts out of the certification process (something I doubt they will do). [UPDATE: DOJ's filing today suggests that 105B is mandatory: "[T]he statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight."]

All of which is to say -- and I think JaO and I agree here -- that the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether (even if the minimization requirements would apparently come back into play under a certified program). Anonymous Liberal calls this a "major legal loophole," but I don't quite understand how it's a "loophole"; it is, rather, the very be-all and end-all of the Act.

One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance.

posted by

ewastud : 1:28 AM

Thanks for your insight and your patience. I too really hope you stick around, which I will now prove by asking what might be an asinine question.

If I read this correctly, the feds (a) have legal access to stored digital information, as long as what they are looking for is in compliance with the not very burdensome restrictions of this legislation; and (b)can retain or disseminate it if it is, was, or will be evidence of a crime unrelated to what they were looking for.

So -- if they do not need a warrant to go into, let us say, any part of Verizon's database in quest of something legal under the terms of this act, what, if any, protection or expectation of privacy exists with regard to anything else in the database across which they might stumble?

Forgive me is this is indeed asinine, and thanks again.

posted by

Anonymous : 4:45 AM

To anonymous 1:45

"what, if any, protection or expectation of privacy exists with regard to anything else in the database across which they might stumble?"

My understanding is that you are depending here on the integrity of the Attorney General. So nothing to worry about.

posted by

dstockton : 7:33 AM

First, let me say that Rev. Hillbilly made me smile.

Second, I really want to thank ewastud for turning me on to the discussion over on Balkinization. I heartily recommend it to one and all.

I could devote another post to their observations, but the folks here are are probably sick of the FISA bill by now. So let me say wat I have to say here in this comment.

I think if you look carefully -- really carefully -- at what they are saying over at Balkinazation, you'll see that the horrible problems everyone is screaming about were built into the original legislation. We've been living with a bad law for 29 years.

For example, you quoted this bit:

"the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether"

Here is section 105A:

"Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

Now, the next step -- AND THIS IS THE PART NO-ONE EVER DOES -- would be to go to section 101(f), the definitions part of the original act.

It's here:

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801----000-.html

Scroll down to the definition for electronic surveillance, which is paragraph (f). I won't give it here -- it's long -- but you can confirm what I'm about to say: It ALREADY excludes "surveillance directed at a person reasonably believed to be located outside of the United States."

So 105(a) does not give Gonzales a broad array of new powers. It is a superfluous paragraph which reasserts the original law!

Similarly, Balkinization thinks that the definition of "foreign intelligence information" is too broad. I agree. But that definition is given in the old law, not the update.

So if you really really really want to hate the Dems, then you should at least admit that they let you down in 1978, not 2007.

And there were people back then who said just that.

(I recall the discussion at that time only dimly. Wasn't this issue debated on an episode of "The Advocates" on this question, with Mike Dukakis and Stansfield Tuner...?)

The best we can hope for is a patch job on the current update ASAP and then a full rewrite of FISA within a year. Better the job be done by this congress than by a Republican congress. (Of course, many of you think that no-one should do anything until the great and glorious day dawns when we have a Congress full of Ralph Naders. But, like, screw you.)

Anon 105, the only answer is, I don't know. I am merely offering a guess as to what NSA is up to. Seems to me that Congress cannot regulate NSA activities until they have some idea as to what they are doing.

posted by

Joseph : 10:48 AM

In Downtown Columbia SC, we have been under aerial surveillance for several years now. Lately, things have slowed down, but prior to the past three months, we have had low flying unidentified aircraft cruising our skies day and night. There have been all sizes of these aircraft. There are helicopters, airplanes and even blimps. Columbia is home to Fort Jackson , largest continental army training base in the US and also is the capital city.

posted by

Anonymous : 11:39 AM

Hi, I'm idiot #1. I asked a couple simple questions to help me clarify your points and you answer with derision. I never suggested that you made a mistake and wasn't trying to prove otherwise, nor did I write anything to suggest that I have any "sense of outrage" about this whatsoever.

I wrote, "I guess your opinion boils down the the fact that this is bad legislation, but it's ok if our representatives voted for it?"
And you replied, "Could you possibly be more of an fool? That is not my opinion and it is not what I wrote."

Since you actually wrote "This is bad legislation" I suppose you are objecting to my suggestion that you think it's ok that the representatives voted for it. I was just seeking further clarification on that point since the point of all these blog posts seem to be your distaste for those who are unhappy that their representatives did in fact vote for the legislation.

You really should take it down a couple notches. I felt my comments were fairly straightforward and innocuous and I'm surprised at the hostility.

I understand there are a lot of wackos you disappove of leaving comments here, but your propensity to see enemies in the comments section where they don't even exist is troubling and I believe detrimental to honest discussion of these topics, and to this blog as a whole. Perhaps there really is no reason for you to continue.

Please forgive me if my question was inappropriate and answered in one of your previous posts. It probably would have been easier for you to direct me to the relevant passage I overlooked, instead of resorting to name calling.

Take care.

posted by

Anonymous : 12:19 PM

Joe,
I fiqured out why people put up with your self-righteous pompous tone. Your like the angry father, who while loud and obnoxious, occationally says something clever or relevant. You spend an inordinate amount of time criticizing people's intelligent which distracts from what people come to your sight for-information. I know impatience seems "cute and folksy", but it's sort of limbaughesque. Hey- big fan, nonetheless!

posted by

Anonymous : 12:41 PM

Limbaugh? He butters ups his listeners at every turn. I don't think he ever called his audience "motherfuckers." (I've heard from two ther bloggers that they always WISHED they could do that.)

I am not trying to be either Limbaughesque or cute and folksy. I yam what I yam: a guy who got so pissed off at a particularly obtuse comment that he gritted his teeth, cracked the enamel, and now can't eat corn chips without pain.

Oh well. I need to go on a diet anyways. A soup diet.

posted by

Joseph : 2:22 PM

This comment has been removed by a blog administrator.

posted by

Anonymous : 11:12 PM

FISA is a red herring. Read Bamford Puzzle Palace Pgs 129, 306 331-332. NSA uses MI-6 to intercept domestic communications and has been doing so for years. FISA doesn't apply to foreign intelligence agencies. It's part of the so-called 'special relationship.'

posted by

Anonymous : 12:41 AM

Bob, go fuck yourself. STAY AWAY FROM MY SITE.

posted by

Joseph : 1:15 AM

Anon 9:41: About the special relationship with Britain -- I've made that very point. Twice, I think.

posted by

Joseph : 1:16 AM

It strains and pains the left side of my brain too much to try to pierce through much of Balkinization's more detailed and nuanced legal discussion. However, my gut "feeling" is that the FISA legislation is itself unconstitutional, if we could still find at least 5 Supreme Court justices with the integrity and the balls to admit it.

The FISA court seems to be super-secretive, disconnected, and isolated from the whole rest of our checks-and-balances system of government, as well as the judicial system it is nominally a part of. From what I recall reading, I don't even believe the Supreme Court can be made privy to the intelligence information and overrule a FISA court decision.

I see no inherent check against the judges of the FISC becoming a corrupt cabal in cahoots with the President, or other power center in our government and fully institutionalizing a fascist totalitarianism, if we are not close to that point already.

posted by

ewastud : 1:45 AM