Thoughts on FISA

by emptywheel

The smart lawyers who (I think) didn't attend YKos have already posted some really important things on the FISA debacle this weekend. Go here, here, here, and here. Oh, and here's one from a smart lawyer who was at YKos. But the short version is that Bush now has even more rights to wiretap than what he was known to have had under the secret programs that he instituted after 9/11, because the existing law, as distinct from what they claimed about the earlier program, does not require to show a plausible connection to Al Qaeda. Basically, if the government wants to collect my phone calls to my parents-in-law in Ireland and they're willing to claim that the target of the tap is my parents-in-law and that a significant purpose of that collection is intelligence related, they're going to get to hear about our plans to meet in South Carolina in the fall.

One thing that not enough people are emphasizing, though, is who gets to make these claims. If BushCo wants to tap my calls to my parents-in-law, then the only proof they need to offer, regarding who is the target and what is the value for intelligence collection, is the word of DNI Mike McConnell and AG Alberto Gonzales. Yup, a man whom much of Congress--to say nothing of clued in observers--believe to be a certifiable liar, is the guy who gets to tap my calls if he wants to claim it serves an important intelligence collection purpose. So a legislative process that should have been used to insist on the firing of Alberto Gonzales instead gave him and his lying eyes vastly increased power. Not to mention the fact that, at a time when we're worried about Gonzales' politicization of the judicial system, we've just moved more oversight out of the courts and into Gonzales' pocket.

Now think about the timing for a moment. I would suggest that, even after some FISA judge denied the government its warrant for tapping within they US, they've figured out how to do that anyway (after all, they were willing to do it illegally for 5 years prior to the judge's ruling, so why not do it illegally for a few more months?) So why the urgency? Easy. Congress was about to unveil proof that the Administration was acting illegally for those 5 years. With more people accepting that Gonzales has been parsing wildly to hide the clearly illegal aspects of this program, it was only a matter of time before the other, more offensive parts of the program came out.

Like tapping people with no ties to terrorism.

But who cares now, right? After all, Congress has just sanctioned such action. We are going to have an increasingly difficult time demanding all the documents related to the illegal programs and authorizations for two reasons. One, in spite of Conyers' intent to make revisions before the six month sunset of this law, we just have less legislative urgency surrounding this bill. And second, where's the urgency to prove the illegality if those actions are no longer illegal?

So in addition to my grave concerns about the civil liberties implications of this law, I'm just as troubled by the way it will short-circuit what minimal oversight we were trying to muster.

Comments

[mainsailset]

This weekend I went to my local Ace Hardware to purchase a new toilet seat. I chose the one that said 'real oak' and ambled home. Apparently, 'real oak' is the trade name and has nothing whatsoever to do with the materials used.

My point is, what defines a terrorist and his activities and associations? When you talk with your in-laws, are you talking to people who are associated with terrorists because they reside in a country that has known conflict? And does the definition enjoy moving goalposts according to the curiosity of the listeners? Padilla's case illustrates this right in Congress's face and yet I didn't see discussion during the FISA vote Saturday night. If indeed the Decider is the one who defines terrorist the one more block just fell into place.

[emptypockets]

I certainly agree with the analysis of the timing behind the urgency. I was watching the House vote and it was confusing to hear the Republicans explain that FISA had been out of date since the 1970s -- some really hit this point, explaining about copper wiring and kitchen phones hanging on the wall -- and how therefore it was really critical to revise this law that's been out of date for three decades, in the next month, without explaining why it was suddenly relevant or why the last two Republican Congresses hadn't dealt with it if it was so important. It left the impression that they had all just woken up that morning and realized cell phones aren't just for sex messaging.

One question I had about the technical details relates to this:
the only proof they need to offer, regarding who is the target and what is the value for intelligence collection, is the word of DNI Mike McConnell and AG Alberto Gonzales

is that actually an "AND" or an "OR"?

Also, a piece of comprehension that I have found missing in the bulk of postings on this is what you capture here:
if the government wants to collect my phone calls to my parents-in-law in Ireland...they're going to get to hear about our plans to meet in South Carolina in the fall.

I think this response would be common among Americans, in numbers greater than I think is appreciated, would say "sure, if you think it's important for intelligence, tap my phones now and then. I've got nothing to hide." If there is going to be an uprising against the renewal of this bill in six months, that attitude ought to be targeted. It either needs to be shown that the information collected is being used for some other nefarious purpose that even the most clean-conscienced American would not be ok with, or the focus should be put on the ineptitude of the government at keeping secrets and the fear of identity theft and having personal details "loose" on the internet that Americans already are alarmed by.

[Boo Radley]

Thanks emptywheel, very, very sad. IMVHO, the Dems who voted for it were triangulating ahead to the next attack. They figured if they did not gut FISA, after the next attack, the GOP would have blamed our inability to stop it on them.

[Dan]

A handy guide to those who voted "yes" and their home pages:

http://pruningshears.squarespace.com/pruning-shears/2007/8/5/house-fisa-yes-votes.html

[Boo Radley]

"I was watching the House vote and it was confusing to hear the Republicans explain that FISA had been out of date since the 1970s..."

Yep, I think the reality is even worse. IIRC, Foreign Intelligence Surveillance Act of 1978 has been updated frequently, most recently in 2004.

[Boo Radley]

RIP the unbelievably economical 4th Amendment: "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."

[Katie Jensen]

Why? Why did they capitulate. I need some reasonable explanation because I cannot believe that they (who voted in favor) are ALL idiots. It's too black and white. What is the grey area? I am trying hard to do my dialectical synthesis here.

It makes sense for dems to vote this way because...

It makes NO sense for dems to vote this way because...

Synthesis of two polar discussions.

It's dangerous for america that the dems voted this way.

It's safer for americans that the dems voted this way.

Synthesis.

HELP I am too emotional to get to the polar arguements. You people are good at this...help us get to the kernal of truth in both sides and come up with a synthesis that works. I believe the universe always provides one.

[J. Thomason]

Last I checked there weren't no stinkin telephones around or even radio signals when the the 4th Amendement waw adopted. But low and behold when telephones were invented the 4th Amendment applied. How much more disingenous from a Constitutional perspective could the technology argument be?

[Boo Radley]

It makes POLITICAL sense for dems to vote this way because..., because they felt if they did not, the GOP would blame them for the next attack.

[Boo Radley]

I used "political" above in its worst form. I did not mean in anyway to defend the vote as I think it was completely indefensible for both Democrats and Republicans.

[mighty mouse]

Why are Pelosi and Conyers suggesting amendment of the FISA bill NOW? Seems that (great) damage has already been done...

[emptywheel]

~pockets

Yes, there is an AND. But I'm not sure what that AND entails, and even if the FISA court is unhappy with the way that AND works, there's not much they can do about it.

Katie

I've nudged Kagro to do such a post--or more specifically, to explain why the Dem House bill failed and the Senate/WH bill passed. And I think th two worked in conjunction.

That is, there was a real need--one even Russ Feingold agreed with--to give the govt permission to tap international communications taht traverse US backbones. That's effectivley what the House bill was, plus it had a 90 or 120 day sunset. Though I think it still left the "how do you tell an international call" undefined. So that mean Dems couldn't support that in block. Meanwhile, the other bill only needed a fraction of the Dems on board.

So "why"? Because there is a need, and Dems didn't have the leadership to address just that need and get a bill passed.

[kathleen]

Bob Novak on the Diane Rehm show today at 11. a.m. Call in your questions 1800-433-8850 or email...drshow@wamu.org

[my too sense]

Well, I just think if there is a person outside this country in the tubz on this here internets site typing with all of us, we'll all can potentially be legally monitored can't we? Just in case, I'm Waving hello to Abu and McConnell right now.

Another point, that Abu part is just frightening. As we all know he's just Cheney/ADdington/Rove's sockpuppet. Don't you think for a minute the next time any critic of Cheney's will be spared from this especially after we saw what he and his henchman did to Mr. Wilson and "the wife".

Lastly, even Fred Hiatt gets this right this time. He even understands the wide ranging implications and possible ramifications of it.

[Albert Fall]

Political triangulation on the FISA vote was required by the Dems because they have no affirmative message of their own to counter the Rep spin.

The true, meaningful message of preservation of American values and upholding the constitution seems to be too tricky for them.

[KLynn]

The next attack will not be prevented by listening in on any US citizen. The Dems should have been willing to suspend that fear. Besides, if that was the threat hanging over the Dems then they must think "something" and/or "some organization" might cause the appearance of a terrorist motivated act on our soil. Please note the word appearance and the politics behind the word. I hope our Dems are not being pulled over a barrel by a threat.

Here is my suggestion. Have millions protest this decision and let We The People take the responsibility for the next attack in the name of protecting 4th Amendment rights. The Dems cannot be blamed if their constituency is standing up in mass numbers and saying, "No!"

I see the crazy logic of Dems not overturning it.. something happens and then the Dems can say, "see, it didn't work." That thinking is dangerous because then it will okay the violation of more rights in the name of fear and protecting the US. The moral question is, "Are we going to sacrifice Constitutional rights because of fear or are we going to preserve, protect and uphold the Constitution and Bill of Rights despite threat. I'll take my chances and select preservatioon despite the threat?

The fact is, if we had spent the $$ spent on the war to secure our ports, borders, airports, energy etc... We would not be making legislative decisions out of fear and violating the rights of We The People.

[phred]

Katie -- EW hits the nail on the head here, Bush pressed for FISA because with Gonzo's recent testimony coupled with Mueller's there was the very real possibility that the illegal spying that had been going on would come to light. Pelosi has known about the abuses as a member of the Gang of 8, but did nothing to stop it, so she needs the political cover as well. Both Dems and Rethugs get a lot of corporate campaign donations, and the telcos were legally exposed by their complicity in turning over records without warrants, so they wanted this legislation too. Meanwhile the 'fraidy cats in the Dem caucus are petrified of being blamed should another attack occur. So here you have a perfect storm of interests coming together to blow apart the 4th amendment.

mighty mouse -- Pelosi's letter to Conyers was political cover. Period. She also voted against the amendment, no doubt to be able to pretend that she was not in favor of it. However, as Speaker she could have prevented the bill from coming to the floor. At the very least, she could have waited until after recess for a more thoughtful debate. But, since that was the last thing the power brokers in DC wanted, that did not occur.

Note, I do not intend to single out Pelosi, Reid is also on the hook here. But, Pelosi's letter to Conyers added insult to injury.

It is important, that we don't rely on the facile response of only holding the 41 Dem Reps. and 16 Dem. Sens. who voted in favor of the legislation responsible. The leadership is primarily responsible no matter how they voted, nor what nice sounding letters they write just for show.

[John Lopresti]

Some technical people have to evaluate which equipment's sales will escalate under the neoFISA bill just signed.

[Ishmael]

EW - is it possible that despite the change in legislation, a judge on the FISA court could declare the new FISA as being unconstitutional due to its violations of the 4th Amendment? The very strict application of standing rules by the federal courts make it difficult to apply for a declaratory judgment in the normal course, with of course the "national security" restrictions to prevent any case from moving forward even if a plaintiff who was directly affected could be identified, but it would seem that the only hope is for a principled FISA judge to declare the whole program unconstitutional. Now, I appreciate that Bushco ignored an inconvenient ruling for months from the FISA court, and the doctrine of mootness in the event of such a ruling would set in after the 6 month period expired, but as I understand it, the FISA judges are not simply limited to applying FISA, they can apply constitutional law as well. Correct? I'm sure the FISA judges are carefully vetted for such instincts, and true civil libertarians are just not appointed, but this seems to be the only hope for change at this point, because I do not see "making FISA more terrorist-friendly" to be a priority if the Democrats take back the unitary executive in 2009 - think Clinton and gays in the military. Is it too much to expect Judge Walton to come to the rescue of the rule of law twice in one administration?

[earlofhuntingdon]

This is not the version of "bipartisan" any of us expected from Harry Reid, let alone Nancy Pelosi. The enhanced, bipartisan version of Bush's authority to search without a warrant can access all communications with a "foreign" target for purposes of collecting "intelligence".

A target is deemed foreign when that conclusion is based on a "reasonable belief", a nasty Post-It note from Cheney, for example. For Fredo, "foreign" includes every restaurant whose name isn't written in English. I know, the "foreign" target is supposed to be overseas - but in CheneyWorld, there's the Sea of Doubt, which all of us live on the other side of. "Intelligence" is whatever Bush wants and Fredo says is OK. Finally, the "target" need no longer have any connection to "terrorism" or "crime". Among other things, this should make every foreign competitor of a US firm that has close ties to Cheney a little bit more nervous.

Consider, if you will, other scenarios. What about the combination of those low "hurdles" and modern technology, which can sweep up whatever's carried on the cable or satellite? Does the "tap" apply only to the single overseas call? What if the target or contact is a business, with lots of telephones and computers? Does it apply to them all, since Raoul or Juan or Ahmed or Trevor can just use his neighbor's phone or computer. What happens when the US side of the "target's" communications changes identity - the number or computer or other device changes hands? What's the protocol?

In CheneyWorld, a 1% risk justifies drastic govt action. What are the odds, then, that once a tap is made, it's never undone? Once the data's collected, is it ever destroyed, or does it remain on a server farm and get analyzed from time to time as ever more diligent s/w pokes and prods it? Every time that happens, is the data is collated with other data on the target's contact's file, which then gets bigger and bigger, like a J. Edgar Hoover dress-up doll that lives on steroids and baked beans?

Is the information ever verified, corrected or challenged? Can anyone challenge how it's used or distributed to any of a maze of "private contractors", who might use it for their own undisclosed purposes (because that keeps the govt's contract price lower)?

Enquirer Minds want to know, but apparently, not anyone in Congress. While we sort out what to do, let's have a contest for the best analogies. Matrix meets Enemy of the State? Is Cheney really the Architect or just another rogue program?

[phred]

earlofhuntingdon -- If you're looking for movie analogies, I would go with Minority Report.

[J. Thomason]

Right EofH. Are these snoopers going to be listening into my my service calls to Dell handled out of India? The implications for commercial espionage in the FISA amendement in the global economy are staggering

[earlofhuntingdon]

Fred Hiatt, like a Greek bearing gifts, is not to be trusted. His editorial sounds right, but I suspect it's main purpose is to show how badly Democrats perform when they have the majority. (Campaign '08, anyone?) Never mind that GOP'ers may do worse, which Fred never bothers to acknowledge. Hiatt's Post is about getting the Dems while appearing to be neutral, just like the GOP maneuvered-FISA legislation that just passed Congress.

As most will have seen by now, that success has merely emboldened Shrub to demand more. (I guess the Rhineland and Sudetenland weren't enough.) He wants his enablers - those who "allegedly assisted" his intelligence gathering (AT&T, the black ops contractors who set up listening/copying posts, ad nauseum) - to have a legislatively minted Get Out of Jail Free card. If Pelosi and Reid cave on that, they should pack up and go home, or ask Kneepads Lieberman for a staff job.

[radiofreewill]

At some point - and going at the current rate, SOON - we're going to have to declare the 'Rule of Law' as our own partisan issue - as voices for national sanity - until BushCo is out of power - or, until we're too busy getting spanked and whipped by Sara Taylor at a Gooper Labor Camp.

When events like the FISA disembowelment happen - an obvious circumvention of individual rights in the name of 'safety' - that should tell us that RoL concerns are being drowned out by the ideological mob's desire to 'wipe-out' it's perceived enemies.

The cracks legally incorporated into FISA last Saturday are more than sufficient to lay the foundation for an ideological wall that spans the globe - and cuts across our own Country - to which the Fourth Amendment only applies to those on the 'inside' of our own Country.

The new FISA changes allow McConnell and Gonzo to decide who is on the 'inside,' and who is not - ideologically - while ignoring the Rule of Law.

Is that not the same as saying our Ship of State is becoming rudderless to the Rule of Law, driven by ideology, and that Citizenship might someday be a discretionary matter determined by the 'powers that be'?

[johno]

Now the Administration is on to the important task of covering their own, and their
corporate co-conspirators, butts for past crimes. Take a look at what AT&T says:

http://www.att.com/gen/press-room?pid=4800&cdvn=news&newsarticleid=22372