On Thursday, June 26th, mcjoan issued a front page challenge to us all, Senators and plebians alike: read the FISAAA bill (that stands for "FISA Amendment Act," the bill actually being voted on) and see what was in there.
She was highly interested in Section 110 of the bill, which contains the redefinition of "Weapons of Mass Destruction" to include
any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident
This captured my attention. This redefinition, coupled with this year's earlier accusations that Iran was providing a class of IEDs to certain Shi'ite elements within Iraq, seemed possibly to suggest that Iran was being redefined into a nation engaged in international proliferation of WMDs. This, in turn, could provide Bush a casus belli, allowing him to bomb or invade Iran without further authorization.
So, last night, thanks to insomnia spurred by my anger that we in the netroots haven't risen to the occasion in fighting this bill, I checked it out. Here's what I found.
Section 110 is not a well-drafted amendment. It provides some possibilities for future mischief involving subtle legislative sleight-of-hand. It does not, however, appear to me to be extremely dangerous as it stands, as it seems to expalnd surveillance power into mostly commercial realms rather than, say, authorizing the bombing of Iran. I could easily have overlooked some danger, though, so I am setting out exactly what it does so that others can review it and contribute their own insights.
If you want to get specifically to what mcjoan was concerned about, you can skip the technical analysis of the rest of the bill and go directly to the blockquote containing the words "OK, this is the section most of you will find most interesting" way down near the end. I include the rest for the sake of completeness.
WHAT FISAAA SEC. 110 DOES:
FISAAA Section 110 makes essentially three substantive changes, which require a larger number of conforming amendments, to the category of who can be targeted using FISA's electronic surveillance and physical search provisions. (A fourth change, numbered as "(3)" below, conforms the subject matter of what can be searched to the above changes.)
(1) The definition of "foreign power" in 50 U.S.C. 1801(a) has been expanded by FISAAA Sec. 110(a) to include:
"(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction."
Previous definitions of the term had included:
(1) a foreign government or any component thereof, whether or
not recognized by the United States;
(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such
foreign government or governments;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not substantially
composed of United States persons; [or]
(6) an entity that is directed and controlled by a foreign
government or governments;
(2) The definition of "agent of a foreign power" in 50 U.S.C. 1801(b) has been expanded by FISAAA Sec. 110(b) to include:
"(1) any person other than a United States person, who -
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or an
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power;"
Previous definitions of the term had included:
(1) any person other than a United States person, who -
(A) acts in the United States as an officer or employee of
a foreign power, or as a member of a foreign power as defined
in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages
in clandestine intelligence activities in the United States
contrary to the interests of the United States, when the
circumstances of such person's presence in the United States
indicate that such person may engage in such activities in
the United States, or when such person knowingly aids or
abets any person in the conduct of such activities or
knowingly conspires with any person to engage in such
activities; [or]
(C) engages in international terrorism or activities in
preparation therefore;
(3) "Foreign intelligence information" is now redefined to include information related to "the international proliferation of weapons of mass destruction"
(4) The previously undefined term "weapons of mass destruction" is now defined in Section 1801(p) as:
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.
ANALYSIS
I'm going to skip over the third change and focus on (1), (2), and (4) above.
Sections (1) and (2) seem to be motivated by a concern on the part of the government that some people whom they would like to target under FISA's provisions currently might evade the existing statutory allocation of authority. Specifically, they want to be able to target all international proliferators of "WMDs" (expansively defined), who might not currently fall within the bill's ambit.
1801(a): I find this surprising. Taking first the definition of "foreign power" in 1801(a)(4), it already includes any "group engaged in international terrorism or activities in preparation therefor." That already seems awfully broad. This change now includes those not-substantially-U.S. groups "engaged in the international proliferation of weapons of mass destruction" who are not engaged in terrorism. Given the expansive definitions of "terrorism" in the U.S. Code, it is hard to think of who might fall into this category, even with the expanded definition of "terrorism" below. The government may have some group in mind, or this may be responding to some limiting decision of the FISC (FISA Court), or it may simply wish to satisfy a lower standard of proof with more ease than the previous definition would require. This could create some problems combined with the literal interpretation of 1801(p), discussed below, but it doesn't chill my spine.
1801(b): The change in defining "agent of a foreign power," is interesting largely because it appears to be redundant. Tat redundancy will probably eventually pave the way for future legislation providing different treatment (such as harsher penalties) for those falling into 50 U.S.C. 1801(b)(1)(E) as opposed to 50 U.S.C. 1801(b)(1)(D). Reading them, one's first impression might be that there is a logical error here: anyone who falls within category (E) must also fall within category (D).
So why have a separate category (E)? Essentially, assuming it's not a mistake, it's probably for the sake of convenience in future legislative drafting. For example, let's say that Congress wanted to enact criminal penalties for those engaged in WMD proliferation on behalf of a foriegn power: it could now create a two-tiered penalty by saying, for example, tha anyone falling into category 1801(b)(1)(d) would receive 10 years in prison and anyone in category 1801(b)(1)(E) would receive 20. The problem I see with this is that, because the term being defined is "agents of a foreign power," anyone who is in category (D) is already by definition acting on behalf of a foreign power, so not only would all members of category (E) be members of category (D), but members of category (D) would be members of category (E) as well, making them identical.
Congress, if it has any pride in its product, ought to fix this before giving final approval to the bill. Those doing statutory construction are constrained not to interpret any language in legislation as redundant, and that can lead to mischief. The most straightforward (and possibly the only) way not to read (D) and (E) as redundant is to read (D) as referring to proliferators who are not acting "for or on behalf of a foreign power," which is an odd thing to include in a section defining "agent of a foreign power." I suppose that they could be acting ultra vires (beyond the scope of their powers), like the real estate agent who puts in an unauthorized offer on a house on your behalf, and that could provide them with less to prove to put someone in category (D), but that seems awfully tenuous to me.
Again, I note that the fact that 1801(b)(1)(C) isn't already sufficient for their ends here shows that the government intends to target people here who are not engaged in terrorism, but only "international proliferation of WMDs," which seems possibly to be a null set. Again, this may merely have to do with standards of proof in what is offered to the FISC: proliferation may be easier to prove than terroristic intent. If that's all this is, it seems fairly benign. But read on....
1801(p): this is what caught mcjoan's (and then my) attention. Subsections (2), (3), and (4) are actually welcome and admirable additions to the U.S. Code -- if they appear elsewhere, I don't know about it -- as they appear to be conscientious efforts to define chemical, biological, and nuclear WMDs. They leave some key terms like "weapon" (about which more later) and "significant number of persons" undefined -- and I can already hear Lindsey Graham pointing out that the latter term should be taken to mean "one," because isn't any death significant to the one who died and his or her loved ones? -- but that gap can be filled later.
OK, this is the section most of you will find most interesting.
It is 1801(p)(1) that causes concern. "[A]ny explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident."
This is awfully, awfully broad language.
The first thing that struck me about the above clause when I first read it is that it contains the phrase "poison gas." Why is that, given that 1801(p)(2) already defines chemical weapons as WMDs? (If we're worried about weaponized aerosol anthrax or a radioactive gas, they would already be included in subsections (p)(3) and (p)(4).) I've already boldfaced the key word: 1801(p)(1) deals not solely with a "weapon," but with a "device." That is, this subsection does not merely deal with weapons.
Now, any WMD "device" that I would naturally think of as containing "poison gas" capable of causing "a mass casualty incident" would already seem to qualify as a weapon, rendering this phrase redundant. What then did they mean? Then I thought about it some more. First of all, lots of gases are poisonous. Chlorine, natural gas, carbon dioxide, exhaust gas containing dioxins – they all can and do kill. And while "device" might seem to imply something mechanical, a simple container is technically a "device" – a device for containing something – so that a container of chlorine or natural gas large enough to cause a "mass casualty incident" (which is also undefined) would apparently fall within this definition of a WMD. "Proliferation" would have to be taken to include "international trade," but is that so hard to do?
If this sounds fanciful, remember that section (p)(1) must be dealing with poison gas devices that are not/ weapons, because all poison gas weapons are already included in sections (p)(2), (3), and (4).
Now that we know that a "device" need not be something generally known as a weapon, we can return to the two broader categories in (p)(1): explosive and incendiary devices. Here we’re talking about any such device – not necessarily a "weapon" – that can explode or burn.
A supertanker filled with oil? Fireworks? Cars? Gas grills? All have the capability to ignite and/or explode, causing a "mass casualty incident." A 99-cent butane lighter from China would probably qualify as an incendiary WMD under this provision.
Now, there are three negative reactions one might have to the notion that a butane lighter now potentially becomes a WMD under this provision. I want to get the first two out of the way.
(1) Calling a butane lighter a "WMD" is an offense against semantics.
Yes, this is a completely offensive result if one cares about meaning, but the words say what they say and they will be interpreted in that light. (I don’t know if there is a legislative report explaining Congressional intent to those who unlike Justice Scalia still care about such things, but given how this bill was slipped in, I doubt it.) It debases the concept of "WMD" to go beyond p(2), (3), and (4) to include (p)(1). It leads us to look petty and silly; it undermines legitimate fight against WMDs; it makes garnering international cooperation more difficult. I grant all that. It’s a good subject for a biting editorial comment. Have fun with it. That’s not my purpose here.
(2) This change in language opens the door to the imposition of substantial and unjust penalties for benign actions.
When the butane-lighter importer can be accused, based on this language, of international proliferation in WMDs, that person can also be punished. Criminal laws, immigration laws, civil forfeiture laws can all be invoked. International repercussions would surely ensue. I grant all of that. The spread of this language throughout the U.S. Code – either through its being directly copied in other sections or incorporated by direct reference to this section – would be a disaster. I’m not going to talk about this further here and now.
(3) This enormously increases the number of people who can be spied on or searched in secret under FISA.
This is what I want to talk about. FISA gives the government – and by that I really mean the unconstrained Executive branch – enormous power to do things that bend and perhaps break our Fourth Amendment protections, including forcing people to cooperate in turning over private records to the federal government under a gag order – making informers, knaves, and liars of innumerable people. Currently, it’s a problem that happens X times per year. Under this provision redefining WMDs so expansively, it will happen at some multiple of X. Possible, it will be some large multiple.
I would like to assume that the motivation for this change is relatively benign. I would like to assume that the government wants to go after people who are planting car bombs to use against U.S. troops. I think it debases the term "WMD" to use it to apply to a car bomb – even though they can certainly cause mass-catastrophe devides – but I can certainly understand the desire to go after those who might import them into Iraq and elsewhere.
However, Congress can achieve this effect without completely mangling the definition of WMDs with 1801(p)(1). The use of car bombs and the like should already be covered by the terms "sabotage" and "international terrorism" in 1801(a)(4), 1801(b)(1)(C), 1806(k)(1)(B), and elsewhere. Authorizing extraconstitutional surveillance and search of foreign agents who are engaged in activities such as shipping car bombs to Iraq is already possible under existing law. The inclusion of section 1801(p)(1) adds nothing useful to governmental capabilities and it facilitates abuse involving applications to normal commerce in goods that might explode or ignite. Congress should strike 1801(p)(1) from the bill, and if necessary clarify that attacks on U.S. personnel will be considered "terrorism" for the purposes of this Chapter.
I should note that this bill does not, at least directly, do anything I had feared like authorizing Bush to attack Iran under the 2001 AUMFAT or 2002 AUMFAI (Authorizations to Use Military Force Against Terrorism and Iraq, respectively.) All it does directly is to allow an increase in secret foreign surveillance. But once this bill is signed, we’ll always have to be on the lookout for any other bill that takes its definitions from 50 U.S.C. 1801(a), because that will be a subtle and simple way for future legislators to do great mischief.
Is this a possible game-changer?
I’m still of the opinion that the bill’s offering prospective immunity to all electronic communications provides is more likely to be the sort of game-changer that could derail the quick adoption of the FISAAA bill than this is. But there are grounds for thinking that this could give some Senators some pause.
The headline I’d envision is this:
*Congress prepares to classify auto, oil importers as "trafficking in WMDs."*
Congress, in its rush to pass a revision in FISA, appears to be unwittingly creating a massive new authority for the government to engage in commercial espionage. Because of ambiguities in the bill’s language defining "Weapons of Mass Destruction," all explosive and incendiary devices, along with those containing poisonous gases, that are capable of causing "a mass casualty incident" – presumably including brush fires and large explosions – are to be redefined as WMDs for the purposes of authorizing secret government espionage. (This category has until now contained only nuclear, chemical, and biological weapons.) The bill’s language explicitly does not limit the category of WMDs to what is currently thought of as "weapons." The bill already covers sabotage and terrorist acts, making the redefinition unnecessary as well as unwise.
Anyone who would like to rewrite this diary in shorter form so as to focus on that action item, please be my guest. That, not this, is what would belong on the Rec List; this diary is intended merely as reference material for whatever lobbying offensive may come next.