Posts Tagged ‘FISA’

Dammit, Reddit! You know I sorta love you, but sometimes…

Monday, April 5th, 2010

Reddit, you know I sorta love you. You’re my source for news that doesn’t get covered enough in the American press, for pictures of cats doing cute things, for viral videos. You’re the main reason I’ve already seen every cool link on the internet before anyone else. In other words, I kinda love you.

But Easter morning, I woke up to see this:

Which reminded me of the side of reddit that pisses me off. The way uninformed but sufficiently cynical sentiments go unchallenged, complete with “facts” that aren’t facts. It reminds me that as great as you are at finding the holes in the mainstream media coverage, sometimes you too fall prey to group-think. And that not even facts can arrest the momentum of a rapidly rising story.

Because – you see, reddit, there are a few problems with that post.

1) It talks of “the wiretapping program” as if it were one thing. It isn’t. There have been a number of programs that have existed before 9/11 and that evolved in the years afterwards. (More on that in a minute.)

2) Most importantly, no ongoing wiretapping program is illegal. Or at least,  even as it’s hard to state something with certainty about classified programs whose operations are behind a veil of secrecy, the main part of Bush’s wiretapping program that was illegal was eventually authorized by Congress – first temporarily with the Protect America Act of 2007, and then permanently in the summer before the 2008 elections with the Foreign Intelligence Surveillance Act of 1978 Amendments Act.

This was the infamous bill that gave the telecoms immunity and was all over reddit at the time. It’s main purpose was to authorize certain changes to the FISA bill.

——–

That summarizes what I’m annoyed at. But for some history:

FISA had been proposed by Ted Kennedy to rein in the abuses of the CIA and the executive branch that the Watergate and Church Committee investigations uncovered. (These abuses were largely by the CIA which, though prohibited from operating within America, had abused it’s authority to spy on foreign agents within America to spy on Americans opposed to the Vietnam War and conduct operations on American soil.) FISA was an attempt to check presidential authority by restraining the surveillance capabilities in a few specific ways. (This was parallel to the checks on governmental power that the FBI and other domestic police organizations abided by requiring more proper warrants.)

FISA permitted two types of surveillance:

  • Without a court order, but with the Attorney General’s certification, the president could authorize the surveillance of a communications between foreign powers and their agents so long as “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” These would include non-American citizens operating overseas.
  • The president could authorize the surveillance of the communications between foreign powers and their agents so long as “proposed minimization procedures” for the interception of communications to which a United States person is a party if they applied for a warrant from a special FISA court within 72 hours after surveillance began. These would include foreign agents operating in America – or later, international terrorists.

After September 11, NSA Director Michael Hayden expanded surveillance to some (undetermined) degree, but believed he lacked the authority to go further. Under the FISA system, a judge for the FISA Court who was driving by the Pentagon when it was attacked, issued a number of emergency warrants from his phone in his car. But Hayden believed he could be more effective if he were authorized to expand “surveillance of what would be classified as ‘international communications’ — because one end of the communication is outside the United States even though one end is here.”  Hayden reportedly pushed back against requests from Dick Cheney to spy on purely domestic targets, but the program continued to broaden. Bush asserted the authority to act outside of the FISA Court and the NSA began to analyze call and email metadata as well without authorization from Congress or the FISA Court. Some unknown program – likely related to metadata analysis – triggered the infamous hospital room standoff that nearly sparked the resignations of the Attorney General and the top levels of the Justice Department, the Director of the FBI, and possibly the top lawyers in the CIA, State Department, and Pentagon.

Congress, under Democratic control after 2006, pushed back with Amendments to FISA in 2008 which conceded to Bush in giving immunity for the telecom companies who cooperated with him and authorized most of the surveillance that he had asserted the authority to do without legislation. What the bill did do was specifically restrain the executive branch from overriding it by invoking war powers and legislate specific rules for how surveillance could be conducted. The new legislation:

  • Increased the time allowed for warrantless surveillance to continue from 48 hours to 7 days. (This includes pen registers and trap & trace surveillance.)
  • Required FISA court permission to wiretap Americans who are overseas.
  • Required government agencies to cease warranted surveillance of an American who is abroad if said person enters the United States. (However, said surveillance may resume if it is reasonably believed that the person has left the States.)
  • Prohibited targeting a foreigner to eavesdrop on an American’s calls or e-mails without court approval.
  • Allowed the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
  • Allowed eavesdropping in emergencies without court approval, provided the government files required papers within a week.

As far as we know, the surveillance currently being conducted by the Obama administration follows these rules and is thus legal, though subject to Constitutional challenge and of course challenges on policy grounds.

On policy grounds, there are two main arguments I’m sympathetic with. First, that collecting too much untargeted data leads to information overload.  And second, that it creates the apparatus that could be used for – as Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, warned in a Cato Institute event:

The government is already collecting so much information…especially in the meta-space where you’re talking about …transactional logs and phone records and emails and that sort of thing…

There are very few technological and legal impediments anymore to the government getting information one way or another.

That’s not 100% the case but information is sort of there and it will be obtained.

I think that right now, generally speaking, their interest does lie in monitoring for foreign threats and for foreign terrorists and their connections in the United States. My concern is that we’re developing a capability and a capacity that in a different environment, with a different mindset, that that could be turned in very targeted ways on individuals or groups of individuals…

The government is really good at – once someone is in the sights …and they know a target – they’re pretty good at finding out a lot of information about that person and diagramming his network. The hard part is these threats that are existing out there beyond the sights, beyond the crosshairs, and this book is largely about people who exist in that space.

I guess the alarm call that I’m raising is if the government ever want to take that and target it very selectively for reasons that we might find appalling right now and unthinkable, they could in fact know a lot. [my emphasis]

Surveillance In the Bush Administration

Monday, April 5th, 2010

Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, had a good rundown of changes in surveillance under the Bush administration in a talk for CATO:

What my reporting showed in terms of the evolution…of what was probably called the Terrorist Surveillance Program — or the President’s Surveillance Program or Stellar Wind or The Bag or whatever you know you wanna call it — was that the germ of the idea begins not long after 9/11 when NSA finds itself in need of broadening the aperture of the surveillance that it wants to do — and Mike Hayden who is the director NSA at the time concludes that he has existing authority to do that under an executive order actually fashioned in the Reagan administration coincidentally called Executive Order Twelve Triple Three.

And he tells lawmakers that NSA is broadening its scope of collection and that we have existing authorities to do that. There’s some back and forth between him and the House Intelligence Committee in particular on this question. Nancy Pelosi somewhat famously I think writes this letter that says I’m not sure I quite understand what you’re talking about here. And I’m not quite sure whether or not you can do this or whether you need to have a new order. As it was described to me by people who were familiar with that … that was actually going up on targeted — what they called — hot numbers…They were people that NSA wanted to go after that they thought were tied or connected to the 9/11 attacks.

It is also the case that the FISA court issued a number of warrants immediately after the [attack]. I think Judge Lambert actually was…actually issuing them, or released preliminary orders I think from his phone at one point. He was driving by the Pentagon when the planes hit and people came to get him to issue [unintelligible] orders…[Then] around October of 2001, when George Tenet, then the director of Central Intelligence [Agency], begins making the rounds with the intelligence chiefs and says, “…[A]re you doing everything that you can right now to prevent another 9/11?…Do you’ve got everything that you need?” And Hayden’s response — he’s testified to this — is, “Not within my current authority.” So, Hayden goes down, briefs administration officials, the president, the vice president are there, and essentially lays out a plan by which they could do expanded surveillance of what would be classified as “international communications” — because one end of the communication is outside the United States even though one end is here. And so thus begins the sort of first stage of the Terrorist Surveillance Program.

There was reportedly some desire by Cheney and David Addington to do pure domestic warrantless surveillance — and the reporting I’ve seen on this… — is that Hayden pushed back on that. But he did want to construct a system that whereby they could do what he later called, “hot pursuit of terrorist communications,” without having to go through the FISA warrant process. It’s after that that NSA starts also going to telecommunications companies and wanting access to the metadata as well. I always sort of imagine the program — to sort of make sense of it in my mind — is that in the perfect world if this thing worked, you [would] have all this metadata that would tell you where all the patterns of communications were and as soon as one of them… hit the trip wire of suspicious activity over here, NSA now has the authorities to go zap right down and find that particular communication and pull it out and look at it.

So there were layers to it… It evolved from the initial stage after 9/11 — “We have the authority to do some expanded surveillance” [to] “We need more authority to do more expanded surveillance” [to] “Now we want to go even beyond that as well.” It was my understanding from talking to people who were involved — and people the White House — that it was the expanded metadata surveillance part that triggered the standoff in the hospital room. We’re still I think not entirely sure what part of it it was but — it revolved around that data and the collection and use of that information. [my emphases]

Liberty is Not Another Word for Anti-Antiterrorism

Tuesday, December 9th, 2008

Eternal vigilance is the price of liberty.

The Wall Street Journal editorial page is a platform for kings and prime ministers,  presidents and scientists, thinkers and businessmen, who want to speak to the powerful and monied interests of the American elite. And then, there are the crazy right-wingers who run the board and invite their friends to write short propaganistics pieces.

Reading yesterday’s editorial board piece about the “anti-antiterror lobby,” I was tempted to throw around terms like “fascist” and “fear-mongerer” in response. I felt a strong visceral anger as the board described those who insisted laws be followed – the foundational principle of civilization itself – as in league with terrorists (who oddly seek the same freedom from law the Wall Street Journal supports). I was so angry I missed the point of the piece.

But, after a time, a walk in the cold, I was able to tame my anger – to reason with it, to analyze it, and to direct it more appropriately.

Despite the hysteric, trying-too-hard rhetoric, the Wall Street Journal might well have a point when it sided with Ray Kelly in criticizing the “unnecessarily protracted, risk-averse process” that is behind the current technological innovations. They’re probably right in stating that the FISA is flawed. Which is why it’s too bad that the Journal board used their influential platform to “boomerize1 the issue instead of actually discussing it in any meaningful way.

I shouldn’t be surprised that the Journal would politicize national security instead of acting responsibly. This is what they do. They represent the worst of Boomerdom. The actual argument they put forth has emotional resonance – touching on themes that were relevant in the 1960s. But it ignores the actual issues at stake here – the rule of law; new technologies; terrorism; checks and balances; liberty; the Constitution; public safety. The Journal doesn’t acknowledge that a balancing test must always be applied – between liberty and security. Instead, they mock those concerned with liberty as pro-terrorists (or to seem less ridiculous, “anti-antiterrorists.”)

The Journal‘s rhetoric is at worst diabolical – as they seek to place political blame on the Democrats for any future attacks because “Democrats and the left” inserted “an unelected judiciary into the wartime chain of command.” But this invocation of wartime is a sleight of hand – unless the Journal considers America itself to be under marital law. The Journal talks about how the executive branch already has “Constitutional authority” to wiretap communications that FISA was explicitly set up to regulate – neatly accepting the most extreme view of executive authority that led the mutiny of the top members of Bush’s Justice Department and almost causing John Ashcroft (Attorney General), Jack Goldsmith (Head of the OLC), James Comey (2nd in Command of the Justice Department), Robert Mueller (FBI Director), as well as scores of their subordinates – Republicans and staunch conservatives all – to nearly resign in protest. Now, these conservatives are lumped in with “Democrats and the left” as “anti-antiterrorists” because they believe in some limits to executive power, even in the field of national security.

The Journal manages to explain away why the conservative attorney general is the one who is telling Ray Kelly he’s wrong – rather than the FISA court which has rejected only a handful of the tens of thousands of applications for warrants to wiretap.  Of course, the attorney general is refusing to even submit Ray Kelly’s requests to be adjudicated – which the Journal acknowledges is a wise move because the “system” is dominated by “anti-antiterrorists.” They blame the attorney general’s actions on the liberals. The Journal insists that the famously prickly judge is just trying to please the liberals because only liberals would insist on laws to restrain the actions of the executive. Apparently, the Journal cannot understand what kind of man could stand up for American values in the face of fear and terror – so they presume he must be pragmatically compromising with liberals.

Thus, the Wall Street Journal has turned a bureacratic struggle between two conservatives into an indictment of the rule of law itself. Apparently, lawfulness is deemed in essence liberal, aka “anti-antiterroristic.” Does that leave us with monarchism? Which laws should the executive obey? What if the law is amended to address concerns? Should we get rid of the Fourth Amendment and that whole idea of “unreasonable searches”? None of these questions are answered – or even addressed. It’s really too bad that the Journal didn’t have any space to let some grown-ups write an op-ed on the issue. They were too busy trying to score clever political points.

  1. They politicized the issue along the lines of the Baby Boomer divide, using key words and paradaigms that are designed only to appeal to half of the public. []

Obama Tells You Why You Shouldn’t Be Disillusioned Because of His FISA Vote

Tuesday, August 19th, 2008

Following up on this.

H/t Andrew Sullivan.

Why Obama’s FISA Vote Shouldn’t Disillusion You

Thursday, July 10th, 2008

I agree with those such as Glenn Greenwald who are criticizing Obama over this issue. But my argument against those who have been disillusioned by this is several-fold:

  1. If you thought Obama was not a pragmatist who “attempts to find a rational common ground on controversial issues”, then you weren’t paying attention. Obama is not and has never been an ideologue – he is a mainstream politician.
  2. Obama promised to filibuster one provision which he still opposes, and voted against. He only changed the extent to which he would support opposition against it.
  3. The rhetoric about the “shredding of the Constitution” is over-the-top. The FISA bill – which Obama saw as flawed but better than the status quo, and which he never said he would oppose – strikes a balance between liberty and security. You can disagree with the balance – but to paint the issue as black-and-white is to misunderstand the issues in a basic sense. There are quite a number of issues which many of these same Obama supporters agree with that also would seem to violate core freedoms and the Constitution. For example, Obama supports gun control despite the right to bear arms; Obama supports campaign finance legislation despite it’s burdens on free speech; Obama supports a national education policy despite the tenth amendment. All of these require a balance between liberty and the Constitution on one hand and progressive goals on the other. In a similar way, the FISA debate is the balance between the fourth amendment on one hand and national security on the other. We can disagree where that line should be drawn – but the rhetoric of both the right and left ignores the FACT that neither side is taking a pure stand. Both are arguing for a particular balance.
  4. Much of the disillusionment stems from a hope that many people had that Obama would somehow make things right and undo the Bush years. But Obama is not some messiah – he is a politician, a cautious and pragmatic one. The hope that I have is not that Obama will fix things himself – but that he will take steps to allow those concerned to engage with power. Obama will not himself be able to accomplish what a strong movement will – but he will be able to magnify the power of the movement as he takes steps to ensure government accountability. We are the change we are waiting for.
  5. Obama is just another politician. But he is an uncommonly good one, an uncommonly thoughtful one, and an unusually astute one. He is a candidate worth supporting – and one who can achieve some real change with our support.

Barack Obama, FISA, and Telecom Immunity

Thursday, July 10th, 2008

As I posted previously – there has been a lot of anger by a significant subset of Obama supporters at his reversal on how he would oppose the telecom immunity provision in the FISA bill.

As part of the group that is the center of much of this protest – “Senator Obama – Please Vote NO on Telecom Immunity – Get FISA Right“ – I have had a front-row seat to observe the raw feelings of the most disappointed supporters.  I argued in my previous post that many of these supporters had lost perspective – as they abandoned Obama over a position that was a rather minor element in his campaign.

But one thing my response missed – and most of the angry Obama supporters missed – is precisely what Obama changed his mind about.

Obama – through a spokesperson – had promised to support a filibuster of any law that would give the telecommunications companies immunity from civil liability for their actions relating to the warrantless wiretapping program:

To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies

Throughout his campaign, this promise was reiterated.

In February, Obama voted to strip away the provision that gave the telecoms immunity from the FISA bill – but the amendment failed to garner sufficient votes to override a presidential veto.

As the FISA bill came up for a vote this July, Obama announced that he had changed his mind about the degree to which he would oppose telecom immunity.  Yesterday, he voted for an amendment that would strip the immunity provisions from the FISA bill, but voted to pass the bill even though the amendment failed to get the required support.

In other words, while he still agrees with the position that the telecom companies should not get immunity, he has made a tactical decision that the costs of opposing the full measure were not worth the benefits.

Many who have expressed disagreement with Obama have talked about how he has changed his mind about defending the Constitution, how he is now agreeing to eviserate the Fourth Amendment, etcetera and so on.  They argue against the full FISA law itself – as well as the telecom immunity provision.  But although Obama has said that he sees the law as flawed, he did not commit himself to opposing it.

Most of those who are disillusioned by Obama’s vote don’t seem be interested in the subtlties.  They speak in terms of betrayal, in terms of being with-us-or-against-us, and they judge Obama harshly by an ideological purity scale.  But if any of these people had evaluated Obama seriously before – they would have seen that he was not the ideological purist they claim he was.

As Gail Collins put it in an insightful column today (an unusual event for her):

But if you look at the political fights he’s picked throughout his political career, the main theme is not any ideology. It’s that he hates stupidity. “I don’t oppose all wars. What I am opposed to is a dumb war,” he said in 2002 in his big speech against the invasion of Iraq. He did not, you will notice, say he was against unilateral military action or pre-emptive attacks or nation-building. He was antidumb.

Most of the things Obama’s taken heat for saying this summer fall into these two familiar patterns — attempts to find a rational common ground on controversial issues and dumb-avoidance.

On the common-ground front, he’s called for giving more federal money to religious groups that run social programs, but only if the services they offer are secular. People can have guns for hunting and protection, but we should crack down on unscrupulous gun sellers. Putting some restrictions on the government’s ability to wiretap is better than nothing, even though he would rather have gone further.

Dumb-avoidance would include his opposing the gas-tax holiday, backtracking on the anti-Nafta pandering he did during the primary and acknowledging that if one is planning to go all the way to Iraq to talk to the generals, one should actually pay attention to what the generals say.

Touching both bases are Obama’s positions that 1) if people are going to ask him every day why he’s not wearing a flag pin, it’s easier to just wear the pin, for heaven’s sake, and 2) there’s nothing to be gained by getting into a fight over whether the death penalty can be imposed on child rapists.

I’ll take this opportunity to point out that Collins is misleading about how she uses the death penalty example as Obama indicated he was in favor of the death penalty for child rapists before the recent Supreme Court decision in The Audacity of Hope.

But her basic point is right.

Why I Am Still Supporting Barack Obama After His Vote For Telecom Immunity

Wednesday, July 9th, 2008

Feelings are running high among us Obama supporters who also are strongly opposed to telecom immunity and the current FISA bill.

As the New York Times noted this weekend, the largest and most quickly growing group in Barack Obama’s social network was “Senator Obama – Please Vote NO on Telecom Immunity – Get FISA Right“.  I had joined the group a few days before the article had come out because I, like many others, felt strongly about this issue.  I still do.  And I believe Barack Obama took the wrong position.

But what has astounded me in the past few days has been the overwrought emotionalism that – from my perspective – has caused many of Obama’s supporters to lose perspective on this issue.  Here’s a sample of some of the sentiments that have been sent out to all of the members of the “Get FISA Right” group in the past few hours, since Obama voted in support of the bill:

“A dream died today!”

“Obama just lost my vote!!!”

“As we are about to throw out the 4th amendment shall we redefine the Bill of Rights as the first 9 amendments, or should we just leave a blank between 3 and 5 as the 13th floor is left out in high rise buildings.”

“I think we finally got to see the side of Obama we all deep down, thought was there. Another money grubbing lawyer going along with the pack; saying one thing doing another.”

Please stop giving your hard earned money to this fraud!”

“Today, the Constitution will be shredded at the hands of Democrats and Barack Obama. I no longer believe that voting makes a difference. I am completely dispirited. Obama’s talk of change is a sham.”

“I find myself today looking for Ralph Nader’s campaign website.”

Perhaps more honest than these sentiments, one writer started with this caveat:

“At this very moment, this is how I FEEL. It does not mean it is how I will follow through, merely how I feel…”

He then unleashed a tirade.  But at least he could see that he had lost some sense of perspective.

Glenn Greenwald, probably the foremost expert on this topic, one of the most influential opponents of this bill, who has been tirelessly pushing this issue through his blog and through guest appearances on radio shows was able to keep perspective when Obama first announced his turn-around on this issue:

There is no question, at least to me, that having Obama beat McCain is vitally important. But so, too, is the way that victory is achieved and what Obama advocates and espouses along the way.

The overheated rhetoric by these passionate supporters lends credence to the scoffing of the right-wingers who have insisted that Barack Obama’s support is weak because the young are naive and credulous and easily marginalized.

Truly – how many people supported Barack Obama over Hillary Clinton, Chris Dodd, Joe Biden, Bill Richardson, John Edwards, Dennis Kucinich, and Mike Gravel because of his position on telecom immunity?  Far fewer than are now peevishly demanding refunds for their donations.  This is an important issue – but it is far from the only issue.

Those of us who have been involved with politics before know that no matter how great the individual, you should never place your faith in a politician.  A knowledge of history teaches us that every great person is still limited by their times.  Abraham Lincoln – perhaps our greatest president – was vilified by the abolitionists of his day for being too pragmatic, for compromising too easily, for not sticking to his principles.  In the end, Lincoln’s greatness came not from the fact that he stood on principle and defeated his adversaries – but that he skillfully managed our nation through a great crisis and took every opportunity he thought prudent to achieve the ends he sought. But it was the people and the battles that created the opportunities.  Lincoln was only a great leader because during that long, hard war, we became a great people, willing to die for the fragile idea of freedom.

Barack Obama is not Abraham Lincoln, and we are not in a civil war.  But we do face a very real crisis of identity and very real threats from at home and abroad.  What we need to remember – as citizens – is that Obama is not and cannot be our savior.  What Obama’s campaign has always been about is us.  Unlike Hillary Clinton or John McCain or any other candidate, Obama’s campaign was about the movement that was supporting him.  Which is why both Clinton’s and McCain’s campaigns have focused their attacks on Obama’s supporters as well as the candidate himself.  For the past few weeks, McCain has been trying to put a wedge between Obama and his supporters – based on the theory that if he can paint Obama as “just another politician,” the youth vote that has been expected to throw the last few elections to the Democrats will forget to show up, again.

Obama is another politician.  An uncommonly good one.  An uncommonly thoughtful one.  An unusually astute one.  But like very person, and like every politician, he has made a mistake and voted for an awful bill.

I still support Obama.  And so should you. Winning this election is not about Obama – but about the movement.  If we do not become a great people, then neither Obama nor any other politician can become a great president.

Obama has spoken positively about how this movement should put pressure on him and every other politician to do the right thing – and with his campaign he has created and with his presidency he has promised to create more of the tools to do just that.  No one will get every issue right – but the core reason to support Obama, as Lawrence Lessig has argued, is because he supports reforming the process to allow citizens to truly engage with power – by making the government more transparent and more accountable.  He also happens to be on the right side of most of these issues – supporting increased transparency in Washington, restoring habeas corpus, ending our neo-empire in the Middle East, opposing wars of choice, net neutrality, and many other issues.

For those who have declared that the “dream” died today – stop dreaming about Barack Obama and start working to get our nation back on the right track.  Electing Barack Obama is only the first step, as today’s events have proven.

I am disappointed in him.  And I think criticism is warranted.  But temper tantrums rarely do anyone any good.

This disappointment will not diminish one iota my determination to have Barack Obama elected the next President of the United States of America. This is our moment.  Let’s not let momentary disappointment lead to a disengagement with politics.