Sunday, January 27, 2008
Personalizing FISA reform
Those of you who have clicked through various of Andy McCarthy's links posted here know that I both follow the debate over reform of the Foreign Intelligence Surveillance Act ("FISA") and do not really understand the legal argument underneath it. Meanwhile, The New York Times continues to fulminate against any law that reduces ex ante judicial scrutiny of electronic surveillance and implies that any Democratic Senator who thinks otherwise has been "bullied" into their position rather than arriving at it with any measure of intellectual honesty. Whatever your position on the issue, it is manifestly true that it is not a subject easily reduced to talking points.
That said, Lawrence Wright (author of the outstanding book The Looming Tower: Al Qaeda and the Road to 9/11
Last May, the director of National Intelligence, a soft-spoken South Carolinian named Mike McConnell, learned that three U.S. soldiers had been captured by Sunni insurgents in central Iraq. As a search team of six thousand American and Iraqi forced combed through Babil Province, analysts at the National Security Agency, in Fort Meade, Maryland, began examinating communications traffic in Iraq, hoping to pick up conversations among the soldiers' captors. To McConnell's consternation, such surveillance required a warrant -- not because the kidnappers were entitled to constitutional protections but because their communications might pass electronically through U.S. circuits.
The kidnappings could have been just another barely noticed tragedy in a long, bloody war, but at that moment an important political debate was taking place in Washington. Lawmakers were trying to strike a balance between respecting citizens' privacy and helping law enforcement and intelligence officials protect the country against crime, terror, espionage, and treason. McConnell, who had been in office for less than three months when the soldiers were captured, was urging Congress to make a change in the 1978 Foreign Intelligence Surgeillance Act, or FISA, which governs the process of eavesdropping on citizens and foreigners inside the U.S. and requires agencies to obtain a warrant within seventy-two hours after monitoring begins. The act was a response to abuses of the Nixon era, when the U.S. government turned its formidable surveillance powers against peace activists, reporters, religious groups, civil-rights workers, politicians, and even members of the Supreme Court. Over the years, the act had been amended many times, but McConnell believed that FISA -- a law written before the age of cell phones, e-mail, and the Web -- was dangerously outmoded. "If we don't update FISA, the nation is significantly at risk," McConnell told me. He said that federal judges had recently decided, in a series of secret rulings, that any telephone transmission or e-mail that incidentally flowed into U.S. computer systems was potentially subject to judicial overesight. According to McConnell, the capacity of the N.S.A. to monitor foreign-based communications had consequently been reduced by seventy percent. Now, he claimed, the lives of three American soldiers had been thrown onto the scale.
Commentary
There would be no judicial review of NSA surveillance of foreigners if some other country dominated the switching of electronic communications. We have contrived via FISA to convert what ought to be a huge economic and geopolitical advantage -- our national telecommunications assets -- into a weakness in the waging of the shadow war against Islamist terrorism. It is not a stretch to surmise that people have died and will die as a result.
It is especially ironic that the strongest supporters of judicial review of electronic surveillance of messages routed through American switches are also the most strident critics of a military response to the jihad and the loudest voices bleating about the Bush administration's failure to find bin Laden. Ideally, in their mind, we would defeat al Qaeda using subtle tactics that nevertheless exclude military adventurism, widespread electronic surveillance without particular ex ante warrants, the confinement of unlawful enemy combatants without judicial review, or the rendering of foreign nationals to governments that might torture them to stop the next attack. One is forced to wonder what tactics the left would allow against al Qaeda, other than perhaps "consulting with our traditional allies" and selling Israel down the river in its war with Hamas and Hezbollah.
9 Comments:
By 
Christopher Chambers, at
Sun Jan 27, 10:07:00 AM:
We will likely be taken over by Red China within the next two decades, with our own stolen military technology, financed by our "borrow and spend" Republicans and greedy tools in big business, and yet all you can do is obsess over some ragheads and malcontents. We aren't fighting some evil army from Mordor. They are a bunch of weasels who got very VERY lucky in 9/11, and seem to capitalize on all of our cowboy mistakes, including this apparent Verdun strategy of lying to the American people about al Qaida and WMD in Iraq (hey, wasn't Saddam on our side when Daddy Bush was prez, just before the invasion of Kuwait?), and then praying some foreign Arabs would ebter the country to mask the real cluster-hump that would result when Saddam was gone. Oh, yes--depopulation, migration and paying extortion money to militias who still hate us is a "success." But what has this "Verdun" accomplished but death abroad and disrespect for the rule of law at home.
As for Israel, I'm not so game to risk the lives of my child-to-be and his/her children for a country the size of the boardwalk at Bethany Delaware because some neo cons and right wing Christians want to speed up the Rapture. They created that mess with the Palestinians. They should clean it up. And they have every incentive to stop the toolishness. Every year more pissedoff little Muslim boys grow up into pissed off Muslim teens. There are more of them than there are nukes in Israel's nonexistent arsenal. And we have crumbling infrastructure and a lot of other pressing stuff to take care of here. Indeed, be nice if local law enforcement could get 10% of that domestic spying cash to use against the identity thieves, unscrupulous mortgage lenders, drug dealers/gangs, meth lab proprietors, illegal alien smugglers, hackers, absentee landlords, corporate book-cookers, toxic dumpers, etc. etc.
...and then we deal with the Chinese. hahaha
By Christopher Chambers, at
Sun Jan 27, 10:24:00 AM:
Oops, and lest we forget--ordinary Americans maxing out their so-called health insurance, or having none, our old people catching hell in a greed economy, our air traffic system a joke...the list goes on, but hey--spying on our neighbors and cutting taxes on millionaires--that'll bring it all back to normalcy...
;-)
By SR, at
Sun Jan 27, 12:02:00 PM:
CC off his Lithium again. Sound like an endorsement for John Edwards if ever I heard one.
By Assistant Village Idiot, at
Sun Jan 27, 01:48:00 PM:
sr- Depakote is preferred these days.
As to the post, concerning what tactics would be acceptable, I think the whole plan is to elect Democrats, and the problems will go away. Perhaps Kumbayah is involved.
By 
, at
Sun Jan 27, 02:05:00 PM:
I basically view FISA as being an unconstitutional violation of separation of powers. It puts the legislative branch directing the Judicial Branch to supervise the Article 2 powers of the President.
I also see the whole immunity deal a bit of stupidity in that the very equipment installed was mandated by the CALEA legislation with no proof as to the extent or type of usage at all. I look for down the line to have some senior dems come forward and say they approved it all from the beginning just like senior Dems were aware of water boarding and then the whole issue disappeared from view like it almost never happened.
To me FISA was an over the top reaction to the Church committee as much as SOX was an over reaction to Enron.
We are tying ourselves in knots just to satisfy some nebulous concept of betterment that is twisted around and buttered up as necessary on a as needed basis.
By , at
Sun Jan 27, 02:14:00 PM:
One need only look at when the shoe was put on the other foot and the Executive Branch had the Legislative Branch foaming at the mouth when the FBI was sent WITH A WARRANT to search Jefferson's office.
Look and ye shall see.
By , at
Sun Jan 27, 02:20:00 PM:
Are there legal problems tracking terrorists because they use modern media not addressed by current laws? Yes. FISA is not the answer though.
Too often we jump for the unconstitutional big fix to stop whatever crisis is the crisis of the day. In this case FISA opens the door to monitoring regular, law abiding citizens of the USofA without any restrictions or constitutional protection.
A military unit was given a high power observation camera to monitor airplanes, airfield security and such. Almost immediately the camera was put to use looking into windows of houses, apartments and hotels near the base instead of looking for threats to the planes.
FISA sounds good, but it is really an open door into our lives.
BTW, China is being infiltrated by North Koreans who are working illegally in Bejing, Shanghai and other economic areas. China and North Korea are not the boggy men that we sometimes think they are.
By , at
Wed Jan 30, 02:23:00 AM:
Tigerhawk, it's really, really depressing - as a Democrat who hopes to find common ground among reasonable conservatives - meaning simply conservatives who read long documents, examine empirical evidence, don't hate people who are democrats merely for their affiliation, that you can misunderstand this issue so fundamentally. You're looking at a tiny piece of the puzzle, and you're completely misunderstanding the nature of the problem at hand.
First: the FISA fight had been going on for years before that FISA court decision - which was in 2006.
Second: George Bush broke the law when ordering wiretaps against American citizens without those FISA warrants - in 2002, 2003, 2004, etc.
Third: There is no Democrat in a position of power, and hardly any pundit nor responsible base member, who has a problem with unwarranted interceptions of foreign communications in foreign countries, even if they go through American switches.
You get that third one?
The problem is that George Bush is demanding retroactive immunity for the corporations who broke the law - FISA - by spying on Americans pre-2006. And secondly, that Bush wants a bill that all but eliminates FISA review on conversations that can and will include US citizens in the US. (Blanket warrants, based on categories, reviewed in bulk a year later).
And he's threatened- repeatedly - to VETO bills that merely fix the reasonable problem Lawrence Wright discusses.
Learn something about the issue at hand, or don't even fuc*ing post. Seriously, your ignorance is embarrassing and destructive.
It's an example of how easy it is to throw away the Fourth Amendment in this country - or any other part of the bill of rights that has no rich interest group defending it.
By , at
Wed Jan 30, 02:25:00 AM:
It puts the legislative branch directing the Judicial Branch to supervise the Article 2 powers of the President.
It's the Judicial Branch enforcing the Fourth Amendment to the Constitution, which is their sole job. What ridiculous trash.
