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
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
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 STATESAnd here are the minimization procedures from the original Act. This is the all-important material that the progressive bloggers have not bothered to read.
* `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).
(h) "Minimization procedures", with respect to electronic surveillance, means -Here is the proof that the original 1978 law gave the AG the same power to conduct warrant-free surveillance of foreign targets.
(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.
(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—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...
(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.
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.