Scenario 1: It’s 2009, and President Gore has appointed Calvin Cleancut to be his Attorney General.
Calvin receives an urgent intelligence briefing: Notorious arms dealer Viktor Bout has just sent a text message to an unknown party in Illinois, someone who may or may not be a U.S. citizen. The message reads:
“LEAVE IMMEDIATELY. A CONTACT TELLS ME THAT A BIG PARTY WILL TAKE PLACE AT THE SEARS TOWER TODAY.”
(I pick Bout because progressives will agree that he is a genuinely dangerous man whose rolodex is filled with the names all sort of really, really, really dangerous men.)
Scenario 2: It’s 2008, and I’m having hot IRC sex with a lady in France. (In real life, I wouldn’t do this. I don’t know any dirty words in French.)
Scenario 3: It’s August 2008, and after finishing hot phone sex with the same French lady, I tell her: “By the way, I’m working for the Gore campaign now. Here’s what he’s going to unveil in the next debate…”
Now, reasonable folks will agree that the AG should get the intercepted foreign/domestic communication in scenario 1. But the AG has no business seeing the messages in 2 and definitely not 3.
How should the FISA law read?
We should all make it our business to ponder that question, because there is likely to be debate in Congress when it resumes. I’ve offered my suggested improvements in previous posts. What are yours?
(I reserve the right to delete messages that do not address the question directly. That means no weird anti-Dem "drive-bys" or wacky references to Nazis or to Jesus. We've had quite enough of that nonsense lately.)
5 comments:
Might want to check out this nation discussion of the FISA changes: http://www.thenation.com/doc/20070827/williams
From current issue, Diary of a Mad Law Professor.
Kara-Berkeley
Thanks for the link, Kara. By the way, any way I could cajole you into reading the actual law, as opposed to reading ABOUT the law?
I read the article by Professor Patricia Williams and the first thought that popped into my brain was: "This woman is a LAW PROFESSOR?"
Well, that's not really fair: Everyone is so upset right now, and people aren't seeing clearly. Professor Williams' other articles show her to be quite insightful and even brilliant.
But man, does she go wrong here! Cannon's Rule applies once more: Any FISA article that does not contain the words "minimization procedures" is likely to be crap.
She writes:
"The Protect America Act of 2007, or Section 1927 of the Foreign Intelligence Surveillance Act (FISA), starts with a clever limitation of the meaning of "electronic surveillance.""
I've already proven that it actually merely restates what is inherent in the original definition of that term. The problem arose in 1978, not 2007.
Then she says that the act allows "blanket data mining" of American citizens communicating overseas. NO NO NO NO and NO. I have made the point many times, and you still refuse to read the law. So does Professor Williams, alas.
Data mining requires data retention. The minimization procedures forbid data retention -- or any use whatsoever of data concerning Americans -- without a court order.
She's wrong.
I'm going to contact her and tell her that she should rewrite. Frankly, at this point I know that law well enough that I have zero compunction about taking a professor to school.
And if she can prove ME wrong, of course I will tell you folks. I may be surly but I am not dishonest.
By the way, anyone out there care to have a go at the little test outlined in the main body of my post?
Nah. Didn't think so. You might have to read a damned law. God forbid!
It is a feature of our law structure that the effect and reach of a law is based not only on the enacting legislation, but the ensuing court cases, interpretations and devolving precedents established in later incidents where the law is invoked.
In its initial form in the late '70s, the FISA law did not, and probably could not with specificity, address future technologies that were not extant at the time. And for good reason-- who wants already arcane law to try to spin out wildly hypothetical cases with no application to the current state of affairs?
Only as case law or court rulings address such novel developments could the interaction of the former law with new technologies be properly adjudged.
Joe, your analysis relies on ignoring the evolution of the FISA law over the years, and especially, the FISA court ruling of March this year. This is described on at the TPM muckraker site as follows:
http://www.tpmmuckraker.com/archives/003908.php
Both the Washington Post and the New York Times present that general outline to explain how the Bush administration gutted the Foreign Intelligence Surveillance Act earlier this month. As reported earlier, the FISA Court ruled in March -- the Post provides the date -- that foreign-to-foreign communications, previously unprotected under FISA, required warrants for surveillance as they passed through U.S. communication switches. Admiral Michael McConnell, the director of national intelligence, saw the National Security Agency "losing capability," in the words of one intelligence official, due to a surveillance backlog generated by the Court ruling.
[So, was this limitation to FISA in the original law? Of course not. However, it was, as of the ruling, nonetheless as much, and rather more, the FISA law as the original enacting legislation, as interpreted in a novel fact situation not anticipated in the original law].
[back to quoting the article:]
Now, in the event of a genuine emergency, FISA allows for a 72-hour grace period for the NSA or the FBI to conduct surveillance before applying for a warrant. So it's safe to assume that surveillance in these cases was more run of the mill -- listening in to generate leads for further surveillance and subsequent investigation. Tweaking the law to overcome that obstacle was uncontroversial when McConnell proposed it in April to the Senate intelligence committee. According to a White House official quoted by the Times, "there was no real argument on the need for a fix." Talks proceeded through the spring.
The sticking point, according to the Post, was that Sen. Jay Rockefeller (D-WV), the committee chairman, wanted the White House to provide documentation on its 2001-2007 warrantless wiretapping efforts:
While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.
Famously, the Bush administration defied a subpoena on the surveillance program issued by the Senate Judiciary Committee.
While the talks subsequently stalled on the FISA bill, the administration expanded its demands for what the bill needed to include. To prevent another 9/11, McConnell argued, Congress needed to relent on several key provisions of FISA. No warrant should encumber intelligence collection. Any foreign-to-domestic communication should be fair game. And such surveillance shouldn't just target terrorists, but rather "all foreign intelligence" -- a critical expansion of the so-called Terrorist Surveillance Program, which the president has repeatedly stated involves "known" members of al-Qaeda. Yet in interviews with the Times, McConnell still says that the problem was "I'm sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications," even though his fix is much broader. [end quote]
-----------------------
Your claim that the ORIGINAL LAW entailed the potential for all the depredations that this revision allows is not exactly incorrect, but it is quite beside the point of whether this change is a change from the FISA law's effect and meaning in its most recently prior evolved form, which was the immediate status quo ante.
And, contrary to your strenuous insistence that there have been no changes in the newly revised FISA situation now compared to the 'original' law, there are indeed the exact multiple changes that those you attack as fear-mongers or ignoratii, if not liars, have specified. No, not compared to the original law, but compared to how rulings have further defined the reach and application of the law.
Robert Parry's piece at his consortiumnews.com also targets one other significant change this revision put in place: removing the threat of lawsuits from the tel-cos from aggrieved customers by immunizing those companies from any liabilities associated with their cooperation with the new warrantless standard.
sofla
Sofla, I’m going to go through your text paragraph by paragraph
“It is a feature of our law structure that the effect and reach of a law is based not only on the enacting legislation, but the ensuing court cases, interpretations and devolving precedents established in later incidents where the law is invoked.”
Okay, this is promising. I always stand ready to be corrected.
My main argument is that the minimization procedures forbid data mining without a court order -- that the language is plain on its face. You are saying that ensuing court cases have changed this. Excellent. I want to know which court rulings did this.
I am all attention.
“In its initial form in the late '70s, the FISA law did not, and probably could not with specificity, address future technologies that were not extant at the time. And for good reason-- who wants already arcane law to try to spin out wildly hypothetical cases with no application to the current state of affairs?”
So far I agree, and have made similar points many times. But: So far, we have nothing about data mining and the minimization procedures. Just which court rulings negated them...?
“Only as case law or court rulings address such novel developments could the interaction of the former law with new technologies be properly adjudged.
“Joe, your analysis relies on ignoring the evolution of the FISA law over the years, and especially, the FISA court ruling of March this year. This is described on at the TPM muckraker site as follows:
“http://www.tpmmuckraker.com/archives/003908.php”
Read it before you cited it. Good piece, but nothing in there about data mining and the minimization procedures.
“Both the Washington Post and the New York Times present that general outline to explain how the Bush administration gutted the Foreign Intelligence Surveillance Act earlier this month. As reported earlier, the FISA Court ruled in March -- the Post provides the date -- that foreign-to-foreign communications, previously unprotected under FISA, required warrants for surveillance as they passed through U.S. communication switches. Admiral Michael McConnell, the director of national intelligence, saw the National Security Agency "losing capability," in the words of one intelligence official, due to a surveillance backlog generated by the Court ruling.”
Sofla, I’m sorry, but are you EVER going to get to the minimization procedures which were at the heart of my argument? So far, I’ve seen no citations of a court case which made those procedures irrelevant.
Now, as long as we are talking about the recent ruling which forbade eavesdropping on foreign-to-foreign data using Americano telcos: Frankly, I find something fishy about this ruling. But that’s a post for another time, one which does not impact my main point about data retention and sect. 105B.
“[So, was this limitation to FISA in the original law? Of course not. However, it was, as of the ruling, nonetheless as much, and rather more, the FISA law as the original enacting legislation, as interpreted in a novel fact situation not anticipated in the original law].
“[back to quoting the article:]
“Now, in the event of a genuine emergency, FISA allows for a 72-hour grace period for the NSA or the FBI to conduct surveillance before applying for a warrant. So it's safe to assume that surveillance in these cases was more run of the mill -- listening in to generate leads for further surveillance and subsequent investigation. Tweaking the law to overcome that obstacle was uncontroversial when McConnell proposed it in April to the Senate intelligence committee. According to a White House official quoted by the Times, "there was no real argument on the need for a fix." Talks proceeded through the spring.”
Agreed, agreed, but the data on that surveillance was not retained or used or spread around in any way without a court order, due to the minimization procedures. At all times, identities of American citizens were stripped from the data -- at least, it SHOULD have been, if the law on minimization was followed.
Minimization. Have you noticed yet how I keep repeating that term? I do so as a gentle hint that you should look it up.
By the way, you have yet to cite a court ruling which renders those procedures inoperative. I read on, waiting expectantly for the promise material. I’m sure it is coming soon...
“The sticking point, according to the Post, was that Sen. Jay Rockefeller (D-WV), the committee chairman, wanted the White House to provide documentation on its 2001-2007 warrantless wiretapping efforts:
“While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.”
Nope. Still nothing that addresses my argument. This is about something quite important, but quite different.
“Famously, the Bush administration defied a subpoena on the surveillance program issued by the Senate Judiciary Committee.”
My guess as to why they did this: They were violating the minimization procedures and looking for data on U.S. citizens. But if that was the case -- LO! Those procedures are still in effect! That part of the law is STILL law, and has not been changed by court ruling over the course of the past 29 years!
“While the talks subsequently stalled on the FISA bill, the administration expanded its demands for what the bill needed to include. To prevent another 9/11, McConnell argued, Congress needed to relent on several key provisions of FISA. No warrant should encumber intelligence collection. Any foreign-to-domestic communication should be fair game. And such surveillance shouldn't just target terrorists, but rather "all foreign intelligence" -- a critical expansion of the so-called Terrorist Surveillance Program, which the president has repeatedly stated involves "known" members of al-Qaeda. Yet in interviews with the Times, McConnell still says that the problem was "I'm sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications," even though his fix is much broader. [end quote]
-----------------------
“Your claim that the ORIGINAL LAW entailed the potential for all the depredations that this revision allows is not exactly incorrect, but it is quite beside the point of whether this change is a change from the FISA law's effect and meaning in its most recently prior evolved form, which was the immediate status quo ante.”
To the contrary: If Bushco defied subpoena because they were defying the set definition of either minimization or electronic surveillance, then they were breaking the original law. As I strongly suspect they were.
“And, contrary to your strenuous insistence that there have been no changes in the newly revised FISA situation now compared to the 'original' law, there are indeed the exact multiple changes that those you attack as fear-mongers or ignoratii, if not liars, have specified. No, not compared to the original law, but compared to how rulings have further defined the reach and application of the law.”
You have yet to cite a ruling. At any rate, I never said that S1927 makes no changes. It does. The main one: FISA 1978 required a warrant for wiretapping terrorists; the warrant-free provisions were directed at state actors. FISA 2007 allows warrant-free wiretapping of all foreigners with “foreign intelligence information” (as defined back in 1978). I have said from my first post that this definition is too broad and always has been.
I have also been saying from the beginning that -- contrary to what you have read from, like, everyone else -- the 1978 law countenanced foreign-to-domestic wiretapping without a warrant. THAT bit has not changed. Honest. It’s in the minimization procedures, which you refuse to read.
Please sofla -- I’m serious -- I WILL PAY YOU $10 IF YOU READ THE LAW. If that amount is not sufficient, what amount would be?
“Robert Parry's piece at his consortiumnews.com also targets one other significant change this revision put in place: removing the threat of lawsuits from the tel-cos from aggrieved customers by immunizing those companies from any liabilities associated with their cooperation with the new warrantless standard.”
And you managed to get through your entire lengthy piece without once giving me what you promised at first: A court ruling which rendered the minimization procedures null and void, thereby allowing warrant free data retention.
Those procedures are at the heart of my main argument. You refuse to address them. Instead, you give me a brain dump on all sorts of other subjects. Why?
I’ve written to Parry telling him where he went wrong, and I am anxious to see what he has to say in return.
In the meantime, I already knew all about the bit that exempts the telcos from private suit if they comply with the law. So, your argument is that telcos SHOULD be sued for complying with a law that they probably wish had never existed?
If I give my hard drive to the FBI in answer to a subpoena, does this mean I can be sued by my correspondents, whose private emails and other private data are now in the hands of Uncle Sam against their wishes?
Interesting. By all means, develop that argument.
I am all attention.
"In real life, I wouldn’t do this. I don’t know any dirty words in French"
That I can help you with btw :)
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