One last attempt at reason

This post is a test. You see, I've read Al Gore's new book, The Assault on Reason. And I want to see if any other readers of that book have heeded its lessons. Otherwise, further discussion is pointless, democracy is doomed, and I might as well spend my remaining days "air conducting" Bruckner.

To be specific: Let's see if people are capable of reasoned debate on the new FISA amendment, more properly known as S1927 or the Protect America Act.

Reason, alas, seems a scarce commodity in these times of boiling blood. Yesterday, Randi Rhodes had a caller who insisted that the passage of this act meant that Democrats should get rid of Harry Reid as Senate leader and replace him with Jim Webb. This, despite the fact that Reid voted against the bill and Webb voted for it!

(I hate being in the same party with such dimwits. That caller's reaction was pure Daddyism: Webb looks and sounds more like a Daddy than Reid does.)

Now, I cite that example because it represents a widespread reaction. Over at D.U., MadFloridian has proven to be one of the few observers who gets it: He points the finger at the Blue Dogs. Nearly everyone else screams for the blood of Nancy Pelosi, even though her performance has been beyond reproach.

She voted against the bill. She tried to have it rewritten. She called it an assault on the Constitution.

And even though the bill is a stop-gap measure, designed to last a mere six months, she has asked John Conyers to fight to have it overturned or amended one month from now, as soon as Congress returns from recess.

What more could she do?

Randi Rhodes suggested that the act could have been held up in the House Rules Committee. But any such attempt would have been foolish and dangerous.

Even Russ Feingold admitted that something was required -- on an emergency basis -- after a court had struck down the NSA's ability to eavesdrop on foreign-to-foreign communications routed through U.S. telecommunications servers. I agree with Feingold. Look, there really are terrorists in this world, and if Known Terrorist A in Dubai chats with Known Terrorist B in Indonesia, I don't think the NSA should consider their communications inviolate simply because they decide to use AOL.

So something needed to be done.

Unfortunately, the amendment to FISA went too far.

Having said that, I must also note that many of the Act's critics have pretended to an expertise they do not possess. Let's have a show of hands: How many of you have actually read the law?

One of the most egregious rabble-rousers, I am sorry to say, was Larisa Alexandrovna. It's no secret that I think that she is just about the best journalist around right now. (Every guy has a personal list of Women Worthy of a Crush; I place Larisa somewhere between Anne Sophie-Mutter and Jennifer Connelly.) But her piece "It's official, we are police state" is inexcusable, and not just on grammatical grounds:

Make NO mistake, we are in serious peril when an Attorney General who has subverted the Constitution per request of his boss, lied, obstructed justice, and defended torture, is now in full authority to declare who is going to be a target of warrant-less surveillance.

Larisa, Larisa...! You speak as though this act is directed against all American dissenters. The current measure is an amendment to the FISA act of 1978. Do you know what the "F" in FISA stands for? The answer is here.

Ah, I see that the Groucho-ized duck has descended from the ceiling. "Da secret woid is foreign."

The act refers to foreign surveillance -- and like or not, the Attorney General has been the key figure in that act since 1978. The AG has always been the one deciding on cases of warrant-free eavesdropping.

(Don't take my word for it. Look it up: 50 U.S.C. sect;1802(a)(1) and 50 U.S.C. sect;1802(a)(3).)

Despite the yelling and screaming you have heard, the current amendment does not greatly change the AG's role. Janet Reno had much the same power. The only difference is that Reno was trustworthy and Gonzales is a snake.

If you want to read the actual statute, go here. If you want to read the amendment -- the Protect America Thingie -- go here. You have to read them together, for reasons that will soon become apparent.

Yeah, I know: That's a lot of homework. But isn't it better to discuss an actual text, as opposed to dealing with a series of vague impressions gathered at third-hand from a gaggle of impassioned screamers?

Like it or not, we've known for a long time that the American intelligence community scoops up all sorts of foreign communications -- legally. Hipper folks have known that our spies routinely trade information with British intelligence and other services in order to bypass FISA regulations. The Brits are the ones spying on us, and there aint' nothin' Congress can do about it.

Few people understand that, under the 1978 law, American intelligence was not allowed to conduct warrant-free eavesdropping on terrorists. That part of the original FISA law was really directed at the intelligence services of foreign governments.

So what does the new amendment actually do?

Let's be candid. My eyes lost focus trying to read that text, and so will yours. Betcha dollars to donuts that the Congressfolk who passed the thing didn't read it very carefully.

If you read the 2007 Act without reference to the 1978 original, you will come away with the impression that nothing in it applies in any way to United States citizens. I am sure that the Senators and House members who voted on the thing were rather surprised to hear from angry constituents who thought otherwise. Many Democrats have been led to believe that the new law grants Gonzales the freedom to read every piece of email generated by the ACLU, the local PTA, and the Loyal Order of the Moose.

Legal experts disagree on the ramifications. I'm hardly an expert, just a citizen. Here are the problems as one citizen sees them:

1. The scope of permitted warrant-free eavesdropping is widened. The target is no longer the KGB or the Chinese Public Security Bureau; the target is now any non-U.S. person.

Nothing in the new law stipulates that the target needs to be engaged in terrorism or anti-U.S. activity.

2. Although nothing in the Act permits scooping up information on U.S. persons without a warrant, the wording may allow for just that -- in a roundabout fashion. Here is where expert opinion seems to be divided.

Basically, Sec. 105B. (a) -- that's the new bit -- allows the Director of National Intelligence and the AG to demand records from ISPs and other telecommunications providers, under certain circumstances. The records must pertain to a foreigner. The DNI is supposed to present evidence to the FISA court that the target really is foreign.

The scooping is supposed to be done according to "minimization procedures" under "section 101(h)." What the hell does that mean? Ay, there's the rub!

(When you check out the 1978 Act, you'll find that these procedures are actually listed under 1801(h). Many of the bill's critics didn't bother to look this up.)

Minimization addresses an obvious problem: What happens when a foreign national is in communication with a U.S. citizen? Take, for example, your phone sex sessions with that French lass you met online. The new law allows the DNI to get all records of those steamy chats from the IRC server or cell phone provider.

Here is where the concept of minimization comes in. The following is from the original law, the one we've all lived with for the past 29 years. Try to not let you eyes glaze over; you should actually read this:

(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...

And:

(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;

The exception: If the intercepted communication picks up discussion of a crime or planned crime, all bets are off. Thus, if your phone sex session with that French lass segues into a discussion of the best way to kill her hated mother, the DNI can contact both the French cops and the American cops.

Needless to say, any US-foreign chat can lead to further eavesdropping on the US citizen -- with a court order. If no order appears, then all data involving the U.S. person should disappear within 72 hours. That's the law.

The problem here, as I see it, is that too much relies on one person's judgment. And we simply do not trust the judgment of this AG. Frankly, we should not place this much trust in any AG.

All of which leads us to problem numero three-o:

3. The act puts telecoms and ISPs in a rotten position. In essence, they will be asked to give up records on foreign and domestic customers -- if those citizens have chatted with any foreigners lately.

Ever call customer assistance? You talked to a guy in India, didn't you?

I do not believe that ISPs want to do this.

In the end: The Protect America Act is not the Orwellian horror many have led you to believe. But I still consider it bad law, and I have a few provisional ideas on how to fix it:

1. Create some sensible restrictions regarding which foreigners may be targeted. Allowing the DNI and the AG to go after everyone outside this country is insane. Right now, the law says that the DNI may grab the data trail of anyone who may possess "foreign intelligence information." Hell, that phrase could apply to a guy running an ice cream parlor in Naples.

2. Define "minimization" more stringently. Since we now have the unhappy experience of living with an untrustworthy Attorney General -- and since at least half the country is bound to mistrust anyone holding that position in future years -- we need to make sure than any data involving innocent U.S. citizens really is destroyed within three days, as the law requires.

Frankly, I don't know how this can be accomplished. 1978 tech ain't 2007 tech. Nowadays, data has a habit of hanging around forever.

3. Strengthen oversight. Every time the DNI and the AG interact in any way with the telecoms, they should provide a full record to a FISA court and the permanent Congressional intelligence committees. Perhaps the public should be allowed to know what was done, in a very general way. The Protect America Act does have oversight provisions, but they are, in my view, far too weak.

I'm not sure how to address the legitimate complaints of the telecom providers.

Even so, if Pelosi, Conyers and Reid offer these fixes, then this is a law I could live with.

Alas, in such heated times, fixing the problem may not fix the problem. Democrats will probably still scream for Pelosi's head. One cannot argue with a mob. And that is precisely the right word to describe the current anti-Democratic pseudo-progressives: They are a mob.

Here's my question to the "progressive" mobsters: To what use did you people put Al Gore's book? Did you tear out pages for butcher paper?

One last point: If you step back from the legal minutia and take a more Olympian overview, you'll see the Grand Joke underlying this whole discussion. The Bush administration argues that it is not bound by FISA, amended or not. If American spooks want info on (say) an American anti-war group, they can always ask the Brits -- as they have done for 29 years. And if I correctly understand what Russell Tice and others have said, the NSA's current abilities go way, way beyond anything addressed by even the most current manifestation of the FISA Act.