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A recent claim claim by Lawrence Lessig, a strong Civil Libertarian, made me stop and think.

[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.

People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold & Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, & a blot on the 4th amendment. So why do Lessig & former Constitutional Law lecturer Obama say that it is important? Who is right?

Well, either you can pick your authority figure & believe them—you pays your money & you takes your chances—or roll up your sleeves, wade into the bill & make your own decision. I never was the "argument from authority" type. So, why should I pick one camp or the other?

By way of disclosure, I am something of a Civil Liberties fanatic, and am firmly convinced that Obama did the wrong thing on retroactive immunity and am angry about that. Also, I haven't trusted George W. Bush since the first 10 secs I saw him speaking. He reminded me of the arrogant lying bullies who used to break my bones when I was a youngster. He set off all my alarms just by the way he talked and moved.Obama was something like my 4th choice in the primaries, ahead of Clinton.

So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason.

I've been working on this posting for more than a week, and I think I have a handle on a line of reasoning that shows that the FISA amendment makes sense and may very well be a "Good Thing™". I don't find the argument compelling, but I think that it really deserves to be fully explicated, discussed and weighed. At the moment, I think that I can respect and understand anyone who feels either that it outweighs the argument that FISA as a whole or as amended is so damaging to civil liberties and the rule of law that it outweighs the benefit or the other way around. I would really like to hear people who are passionate on both sides after they understand this reasoning.

Assumptions

There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:

  1. Spying on foreign/foreign communications is OK.
  2. Intercepting US/US communications requires a warrant or constitutional equivalent.
  3. Intercepting US/foreign communications is the purview of the FISA court and law
  4. The location where the spying is done is not as important as who is communicating.
In the next couple of subsections, I will lay out each of these, at least briefly.

1. Spying is OK

Some would argue that "spying is important" or even "spying is necessary". For the purposes of this analysis, all we need to assume is that it is legitimate for the foreign intelligence services to spy on foreigners when that is in keeping with their mission, our relationship to the foreign nations involved, so long as they do so in accordance with their regulations and charter. Such spying is conducted beyond the jurisdiction of the United States and beyond the guarantees of our constitution. Thus "foreign/foreign" communication, by which I mean communications between two people, neither of whom is a "US person", should not be controlled by US warrants or restricted by Constitutional rights. International laws may apply.

It is certainly possible to disbelieve in spying, but we have done foreign spying for a very long time and the foreign intelligence services have always been unencumbered  by the US courts and Constitution, so long as they were operating outside the US and the subjects were foreigners.

2. US/US requires a warrant

On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by  precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:

"United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.

3. FISA controls US/foreign surveillance

One may think, either as a civil libertarian or as a proponent of a strong federal executive that FISA in principle is bad law, but since 1978 in order to balance the government's legitimate foreign intelligence interests with  the need for judicial oversight, FISA has been the law. It's basic charter is to control spying that occurs between US persons and foreign powers or agents. The simple Wikipedia summary of FISA is pretty much in keeping with my understanding and reads as follows:

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If not foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.

4. Location is now unimportant

When the mindset behind FISA was formed, location was pretty much static. If you were spying on two foreigners who were outside the US, you pretty much could be assumed to be outside the US. If you were listening to the conversation between two Americans who were inside the US, then you were probably there, too.

Today, this is less true. Main communications lines are often centered in the US and communications between foreign locations can often be picked up in the US. Similarly, Internal US communications may very well travel outside the US en route. It is generally assumed that this shouldn't change the situation vis a vis rights and Constitutional protections. The US government shouldn't be able to spy on Americans who are in America just because the act of spying occurs outside the US. Likewise, if traffic between known terrorists in Pakistan and agents in Spain happens to flow through the United States, the CIA should be as free to spy on it would have been if the bits/electrons had never crossed over our borders.

This is at the heart of the "FISA must be modernized to keep up with technology" argument that you often hear. And generally, I think that it is correct. The rights and protections should be determined primarily by who the actors are and who the subjects are, and secondarily where the subjects are located. Anything done in the US or to Americans must take the Constitution into account. From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.

What is "private"?

Beyond jurisdiction, the other thing that determines the legality of information gathering is the question of privacy. Gathering public information is merely being well informed. Gathering private information is spying, or at least searching. And so the notion of an "expectation of privacy" enters the picture.

Current law holds that while the content of electronic communications such as phone calls and emails is generally protected (where US Constitutional and other protections apply), the addressing of the messages are not. The court generally has held that the average citizen has less of an expectation of privacy regarding the numbers called than regarding what is said. The address and return address on a postal envelope along with the postmark information is even less protected.

In the purely telephonic days, the devices that were used in this area were "pen registers" and "trap and trace devices". Pen registers recorded the numbers that a phone dialed. Trap and trace devices could determine and record the numbers from which incoming calls originated. These concepts have been adapted to digital messaging and networking. Thus, capturing and recording the addresses that computer traffic flows through is less protected than examining and recording the content of the messages.

Example postcardThis brings us to the illustration of the post card that accompanies this article. Most Internet traffic isn't encrypted, and the address and data portion of a network packet are the same sort of things. In many ways, it is as if mail was accomplished with postcards rather than envelops. Imagine if you will, that the law applied to the information on a postcard the way it does to the Internet or phone call. Without a warrant, it is OK to capture and record the address and return address and the postmark information, but not the text.

Further, let us apply our assumptions above. If the sender and recipient are foreign nationals, operating outside the US, then it is OK for the intelligence services to read the whole postcard, but if either the sender or recipient is a "United States-person", then a warrant or other authorization is required. One can envision a peculiar device that covers the left half of the card or the handwriting on the left, exposing the printed return address, scans the address and postmark and determines the identity and location of the sender and recipient, compares that with suitable records and makes the decision as to whether the hidden portion can lawfully be photographed and recorded.

Mr. Kringle is a native of the North Pole, territory claimed by the Russians. Records show that the postcard arrived on a plane from Canada, but the postmark shows that before that it was mailed within the US. Young Mr. Dough is a US-person, possibly a US citizen. Before such phrases as "keeping a little list" and "fellow travelers" can be used as evidence that Mr. Kringle is a "Red", Mr Dough's rights must be accounted for.

My fanciful steam punk postcard scanner is actually not all that fanciful. It is rather analogous to the sort of software you would need to use in order to capture email. Email messages are just streams of bytes organized into packets and messages according to a whole hierarchy of standards and protocols, and the way that the addresses are encoded is not particularly different from the way that the message content is. In the outer couple of protocol layers,IP addresses are encoded in binary, but the to and from fields of an email message are encoded in exactly the same sort of human readable text as the body of the message. The most simple minded search programs that you could use to search an email stream could readily scan unprotected addresses and protected contents with equal ease.

To implement the intent of our laws, that foreign/foreign messages can be scanned, searched and recorded by our intelligence services, without a warrant or the involvement of the courts, but insure that US/US email requires an ordinary warrant and US/foreign-agent email can be handled in accordance with the  FISA law, a moderately intelligent and carefully crafted program needs to be used.

Basically such a device would consist of a "pen register" to determine who the message addressed to and a "trap and trace device" to determine where it came from. An analyst or analytical engine of some sort then determines if at least one "US person" is involved, and if any foreign agents are involved. If both are "United States Persons", then a list of applicable warrants determines if the contents can be saved or analyzed. If no US person is involved, then the message can be freely analyzed.  If a mixture, then a check for the FISA process must be made.

Any system for scanning the Internet trunk feeds that we have access must be very carefully controlled. The software wants to be carefully designed and implemented, and the people operating and maintaining it must be carefully vetted. The policies and procedures for authorizing and monitoring its use must be carefully written and and enforced with appropriate oversight.

Personally, if I were with the federal government, my approach would be to split the trunk and send the duplicate feed into a highly secured room, control who had access to that room, staff it only with people who had serious background checks, make sure there was a field manual and oversight. Given their charter, the combination of technology and surveillance would suggest that the NSA be the agency chartered to handle this. I'm thinking it would look a whole lot like the whistle-blower described. The question is can the feds be trusted? Given my  dedication to civil liberties and my view on the lawless behavior of the current administration,  I'd have to say, no, not in the current instant. But that doesn't mean that no US Attorney General and no National Security Adviser can be trusted. It just means that we know that they can't all be. We have illustrative examples.

Now a bunch of Senators, Representatives and the odd Presidential candidate probably have more faith in the notion that the federal government can be structured and run in a way that is trustworthy. In the end, most of us trust ourselves and some fraction of folks like us. So, with that in mind, how does the recently passed FISA amendment stand up?

What is the new FISA?

While working on this posting I've read Title I of the recently passed FISA amendment bill a couple of times and tried to chart out the differences. While doing so, I came across someone who has done the same thing and published his completed flow chart of the original and amended FISA, skipping the short-live Protect America Act. Let's have a look at his analysis along with the actual text. The original article can be found on Wes Walls' blog Ketchup and Caviar. Here are the two flowcharts:

              

In his analysis, Wes says:

"The focus of change is the bolded red line marked "U.S. or non-U.S. Persons Located Inside or Outside the U.S." Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but "certified") wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."

I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)

  1. If any US person is involved or the communications is domestic, a FISA warrant is needed
  2. If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
  3. Otherwise, no warrant is needed when no US person is involved.
Paths 1 and 3 represent the simple cases. When no US persons are involved and the communications is foreign, the foreign intelligence services are unencumbered by US law (#1). Generally, if the foreign intelligence services want to spy on Americans or in America, then a FISA warrant is needed (#3). One exception for this is allowed. Spying on electronic communications of non-US persons outside the US by means of surveillance inside the US can be done under the new "Mass Acquisition" process. Note that this is specifically the case where communications that is fair game to our spies is embedded in a system that is known to contain protected US communications that is not targeted. (This is pretty much my case where the combination of a pen register, trap and trace device and analytical engine can be used to separate the two.)

And that brings us to the blue box in the bottom right. Here's what Wes has there:

  1. Is the target reasonably believed to be located outside the United States?
  2. Is the purpose of the targeting to acquire foreign intelligence information?
  3. In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
  4. Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?
I've removed the struck out text and the pointer to part II of David Kris's "A Guide to the New FISA Bill". I will address these shortly.

Questions #1 and #2 basically reiterate the decisions that got us through the flow chart to Mass Acquisition. The new act's jurisdiction has gone from searches involving a "foreign power or agent thereof" to focusing on non-US persons outside the US (question #1). This is actually a good thing for the civil liberties of US persons, since as previously defined, a foreign agent could be a US person working for a foreign power. The question now is just "US person or non-US person". Without the struck out text, question #2 is basically a restatement of part of the logic that got us to this section. It becomes "Is the purpose of targeting [foreign communications between non-US persons believed to be outside the US by capturing traffic within the US] to target foreign intelligence information?"

With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):

(e) Minimization Procedures-

  1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
  2. JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

 Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):

(h) "Minimization procedures", with respect to electronic surveillance, means—

  1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;  
  2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;  
  3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
  4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section  1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.

First, throughout the document, things that used to be the purview of the Attorney General or "the Attorney General or the National Security Advisor" are now "the Attorney General and the National Security Advisor" or at least "the Attorney General with the advice of the National Security Advisor". This doesn't guarantee the good intentions or competence of the two people, but it at least requires the collusion of two Senate approved officials, and one can see why the Senators might want that.

Second, the bill explicitly states in a number of places that the actions taken "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." This may seem frivolous. After all, all US laws must be consistent with the Constitution, and no federal action may legitimately violate Constitutionally protected rights. However, the inclusion of this specific proviso in the FISA law means that violations of the 4th amendment in carrying out these procedures is not only a violation of Constitutionally protected rights, with all that entails, but a federal crime under this statute as well. This provides an additional means of prosecution.

It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It

  • brings all foreign surveillance under this law
  • aligns the law with the jurisdiction and protections of the Constitution
  • requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
  • makes the AG and NSA jointly responsible
  • requires review
  • makes explicit the criminal nature of stepping outside this law or the Constitution
  • increases senate oversight
  • makes explicit the grounds for criminal proceedings
While it may be argued that this law can be abused, that the government can use it as cover for domestic surveillance, the law explicitly addresses that. The law makes it a crime to target any of the following (from section 702(b)):

(b) Limitations- An acquisition authorized under subsection (a)--

  1. may not intentionally target any person known at the time of acquisition to be located in the United States;  
  2. may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;  
  3. may not intentionally target a United States person reasonably believed to be located outside the United States;  
  4. may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
  5. shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

 Making it a crime doesn't stop it, but it does give us a handle for dealing with it.

In the end, given the need to balance the Constitutional protections of US persons and anyone in the US with the need to allow the foreign intelligence services to spy on foreigners overseas, and the facts of the mingling of foreign and domestic traffic and that email is more like postcards than letters in envelopes, I am left wondering  what alternative there is other than a law something like this one.

References

I always warn people not to believe me. Do your own research. Form your own opinions. Be a Free Voice.

Some of the sources I found most useful were:

Originally posted to Vox Libertas on Sun Jul 20, 2008 at 05:53 PM PDT.

Poll

Who do you trust on FISA? Whose analysis do you base your support or opposition on?

4%3 votes
7%5 votes
0%0 votes
10%7 votes
15%10 votes
7%5 votes
15%10 votes
3%2 votes
1%1 votes
0%0 votes
1%1 votes
6%4 votes
18%12 votes
6%4 votes
1%1 votes

| 65 votes | Vote | Results

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Comment Preferences

  •  Tips, and brickbats (14+ / 0-)

    Tips are cool, as are recs, but...

    This is so a work in progress. Please post comments. Critique me. Correct me. I am determined to understand this.

    •  This is fantastic (4+ / 0-)
      Recommended by:
      sskennel, pico, Leslie in KY, awcomeon

      I fully admit I skimmed some of the more convoluted parts, but it's by far the best analysis of the subject I've ever read. You should have included yourself as a poll option...

      I voted Lessig, by the way. He was the reason I supported Obama in the first place and I've yet to seriously disagree with him on anything; he's the closest thing there is to someone who can speak for me on policy issues. It was his pseudo-defense of Obama's FISA vote that led me to at least consider the possibility that there might be two sides to that particular story. I know it's not ideal to trust any particular authority figure, but in the absence of having time to research every single issue in depth for oneself, it's not entirely unreasonable to trust the opinion of someone who has repeatedly and consistently demonstrated that they think the way you do on issues that you have researched yourself.

      John McCain is likeable enough, but he doesn't know Shiite from Shinola.

      by sab39 on Sun Jul 20, 2008 at 07:36:24 PM PDT

      [ Parent ]

    •  "Trust" (0+ / 0-)

      Feingold, Turley, Greenwald, Dodd (in that order) have better analytical minds than most and are able to explain what they know of FISA clearly, and IIRC Leahy was good in his summation, too before this POS bill was passed.  Feingold is on both the Intelligence and Judiciary committees and he's been briefed on stuff he can't reveal for legal reasons (he'd be breaking laws regarding classified info), but he assures us FISA is a bad bill all the way around.  From what I've read of it, I agree with him.

      I have to put "trust" in quotes (I don't trust anyone but myself and my own judgement).  Politicians can only be "trusted" as long as they are monitored and act consistently.  Most are prone to go off course to the dark side when it comes to K Street lobbyists, PACs, corporate money/influence, and a great many legislators have been known to stab us all in the back when it comes to enacting some of these pieces of legislation (AUMF, Patriot Acts, MCA '06, FISA).

      I read some of what you had to say, but I'll have to come back later when my brain is fully awake to absorb the rest.

      (¯`*._(¯`*._(-IMPEACH-)_.*´¯)_.*´¯)

      by NonnyO on Sun Jul 20, 2008 at 11:23:08 PM PDT

      [ Parent ]

  •  Thanks for this: (3+ / 0-)
    Recommended by:
    Odysseus, Leslie in KY, awcomeon

    if you don't mind, I'm going to try to draw attention to this by some other resident lawyers.  I think this is a good discussion to have, so I'd love to hear their take on your reading, your response to their take, etc.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Sun Jul 20, 2008 at 06:12:10 PM PDT

  •  Missing the boat. (8+ / 0-)

    Surely we can see the need for independent oversight. The Attorney General and the Director of National Intelligence are administration appointees. The whole idea of checks and balances requires independence.
    The new FISA law establishes a new procedure whereby  the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established.
    In short, the administration doesn't have to disclose everything to the FISA court in order to get approval. Without independent oversight(with only the authorization of the Attorney General and the Director of National Intelligence), an administration can claim that you said whatever they want, in order to meet the required elements of the "certification" and get FISA approval.
    This is the original problem Nixon had with Watergate, which eventaully led to the establishment of an independent FISA court.

    •  Reading carefully... (4+ / 0-)
      Recommended by:
      Gary Norton, pico, Leslie in KY, awcomeon

      I don't believe that this is for all surveillance that comes under FISA, only for that surveillance that targets non US persons communicating with non US person outside the US. Those people used to be spied on by the CIA and NSA and the various foreign intelligence agencies purely as a part of their mission and outside of the FISA charter.

      As I understand the law, those cases are now brought under the FISA umbrella and in essence have more oversight.

      But I could be wrong. I'd like to see arguments to the contrary with citations. That's my main purpose in posting here... To understand what is a very complex issue.

      Thanks.

      •  Understanding carefully. (7+ / 0-)

        Without independent oversight, and without the administration having to disclose specific facilities, places, premises, or property at which the eavesdropping will occur, we really don't know where (in which country etc.) the surveillance will take place, other than to rely on their "good word".
        Independence(checks and balances) is what's missing from the picture. We can't trust administration appointees(Attorney General, Director of National Intelligence) to not use these powers for political purposes.
        Independence is what's missing from the picture.

        •  It was also pointed out (5+ / 0-)

          Here is a bit from a diary by smintheus

          When you come right down to it, advocacy for the new FISA bill pretty much hinges on the provision that four inspectors general will investigate and report to Congress regularly on the warrantless surveillance programs. The problem which nobody wants to talk about is that the four IGs are not capable of policing these programs.

          The point that smintheus made is this, quoted from Pogo

          Another issue that currently impedes IGs is their limited power to compel testimony and to seek electronic evidence. The law does not currently allow Inspectors General to issue subpoenas for testimonial evidence and is unclear about evidence stored in various electronic forms. Frequently, an investigator needs access to someone who can offer information informally, or explain a document.

          In suport of the FISA legislation Obama spokesperson said,

          Dennis McDonough, a foreign policy adviser to the Obama campaign, said in a conference call this morning that legislation expanding presidential power to conduct warrantless surveillance of Americans’ communications is acceptable to Senator Obama because the United States Inspector General will ensure accountability.

          So with all this in mind, is there really any oversight? It the context of this diary, it seems there is still a very large question mark about the level of oversight.

          And I completely agreee that unless the oversight  provided completely independent then all this legislation is just a facade, worthless as the ink it was written with.

          "America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves." (Abraham Lincoln, 1809-65)

          by Kairos on Sun Jul 20, 2008 at 07:58:09 PM PDT

          [ Parent ]

          •  Excelent point! (1+ / 0-)
            Recommended by:
            Leslie in KY

            And if anything, I'm not surethat it goes far enough.

            One of the really tricky things here is that to understand what information you are allowed to look at and record takes a serious legal understanding and a database of warrants, court orders and so forth. BUT at the same time to implement those rules takes substantial expertise in computer software and netwoking protocols.

            To oversee a surveillance program that looks at unencrypted network traffic containing both foreign and domestic email takes a combined legal and technical expertise. No political appointee has a hope of being qualified. Yet, someone at a very senior level must be responsible.

            The mechanics of oversight here are hideously difficult. I believe taht having been on the net since '74 and reading court decisions and US and Mass legal codes since about 1970, I have the grounding to understand how difficult the oversight problem is. I will not yet caim taht I actually understand how it should actually be done.

            But the law must do something. And the question is what. I wanted discussion here, especially the hard kind because it is such a Gordian knot.

        •  Ah... but there are no places in the internet (4+ / 0-)
          Recommended by:
          Gary Norton, pico, Leslie in KY, awcomeon

          And there's the bug. If what you are doing is capturing data off of the Internet backbone you cannot specify the places.

          I don't argue with the need for oversight. What I know is that there is a lot of oversight in the bill as written. But it is a complex bill and mapping out exactly what it requires is important.

          Many authors write as if in this bill all of a sudden everything is all on the whim of the AG and the NSA. That's not the way I read it. And thus we come to questions of the actual text.

          I suspect the bill is flawed, but the more I read the more I think it may be a serious step from a mess and a bunch of people operating outside the law to establishing the law as covering everything, without exceptions and then perhaps moving some of the lines or improving the oversight or what have you.

          I don't disagree with your principles, what I'm not sure I agree with is that they really apply to this bill as I actually read it.

          •  That same convenient out was used (2+ / 0-)

            by the Bush administration to justify the "irrelevancy" of location. They employed the concept of e-communications going through US or foreign servers as a way to confuse the concept of "location".
            This can be all simplified by designating the source of the communication as the location, regardless of which servers are involved. If we had independent oversight, we could trace the sources, allowing the US Constitution(4th amendment etc.) to apply. But this tactic of "locations is irrelevant in the computer age" successfully "confused" our lawmakers(and maybe the public too) into accepting this lack of disclosure.

            •  I disagree (1+ / 0-)
              Recommended by:
              Leslie in KY

              This isn't a smokescreen. The world really is more complex.

              The reason that the source isn't a good substitute is two-fold. First, US person are protected regardless of location and secondly the communications is protected if either the source or destination is domestic, not just the source. Second, there is the problem that everything is in the clear and pretty much co-mingled when you're dealing at the trunk level. In order to capture the stuff that is all outside the US, you need to access all the bits, and filter them. The filtering mechanism needs to be controlled.

              •  It's a better smokescreen than you think. (0+ / 0-)

                There are many "locations" between the source and the destination. And the administration doesn't have to disclose the "location"(foreign servers etc.) This smokescreen has allowed the administration to make the case that the 4th amendment doesn't apply in the computer age.

                •  Which is why the new bill may be important! (0+ / 0-)

                  If you look at the procedures, they at least appear to be pretty thorough and the mandate that  there be specific procedures defined to minimize the impact on US persons and that those procedures be reviewed.

                  I know you've heard that this is Satan's own bill, that it  is just more of the same. The question is, "Is it?" and that's why a careful reading and analysis of the bill is important.

                  It's easy to say that the Bush administration are law breaking renegades dedicated to the acquisition of executive power and its abuse, and to say that anything that is done will just further those aims. BUT many people, some of whom I wouldn't trust to tell me the time of day, and some of whom I highly respect say that Title 1 is good law and will lower the probabilities of future abuse.

                  It is behooven upon us to understand it. At least I think it is.

                  You keep bringing up "without independent oversight". Jave you read section 702 if Title 1? How do you dismiss the oversight that it calls for? It looks plausible to me.

                  •  As I said in my first comment, (0+ / 0-)

                    the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. I fully understand those implications. This basically gives the government a warrant to use surveillance(search) wherever they please, because they're not obligated to disclose where the eavesdropping will occur to the FISA court.
                    But the big problem is lack of independent oversight.  The Attorney General and the Director of National Intelligence are administration appointees. An administration would have too much power when their own AG and DNI can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States", when they're not required to fully disclose their procedures(locations of surveillance conducted etc.)to the FISA court.
                    Are they afraid the FISA court could be infiltrated by terrorists, and they don't feel safe sharing this information with the court?

                    •  I read that. And responded/ (0+ / 0-)

                      As I said in my first comment,the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. I fully understand those implications. This basically gives the government a warrant to use surveillance(search) wherever they please, because they're not obligated to disclose where the eavesdropping will occur to the FISA court.

                      No, it doesn't. It means that the nature of the limitations are changed. The new limitations are in terms of the targeted subjects and procedures that will be used, rather than where the analyst sits or where the trunk is tapped. The FISA judge knowing that the tap is installed at one of the internet back bone routers doesn't control much at all.

                      Having specific rules about where the subjects of the investigation are located and who tey are and what procedures are used to narrow the surveillance to them can be much more restrictive that knowing where the backbone is being tapped.

                      But the big problem is lack of independent oversight.  The Attorney General and the Director of National Intelligence are administration appointees.

                      That's why it's important to read the law. Those two aren't the only ones with responsibilities!! I've written it several times in comments here. The legislative oversight committees, more of them than ever before, the FISA court and the FISA appelas court, the individual heads of the services all have roles. It's real popular to repeat over and over that the "Attorney General and the Director of National Intelligence" aren't independent, but there are two problems with that.

                      1. The DNI isn't in the law any more it is the National Security ADvisor,. Read the law.
                      1. It isn't just the two of them anyway. It's them AND all the others I keep citing. Read the law.
                      •  What would stop them from (0+ / 0-)

                        putting a digital camera outside your window, if they don't have to "identify the specific facilities, places, premises, or property" at which the electronic surveillance(digital camera) will occur to the FISA court?
                        All they would have to do is claim they were investigating a foreign "terror suspect", meet all of the "minimumization" requirements for that "foreign" suspect, without giving the location of the digital surveillance, give a phony report to congress, something like "we haven't got anything on this "terror suspect" yet etc., as they watch everything you do, without their actions being monitored by anyone outside the administration. And if they ever got caught, they could say " but we had FISA approval.
                        There is nothing that would prevent this, if the government is not required to "identify the specific facilities, places, premises, or property" at which the electronic surveillance will occur.

  •  This highlights an intersting problem (7+ / 0-)

    Being a card carrying member, I have put my faith in the ACLU, a choice you did not include. That said, your analysis is very thorough. I thank you for your efforts, because it isn't likely that I will have the time to do such research my self.

    It is like many laws and issues that get placed before the public to decide. We really only are left the choice of embracing the opinions of others "in the know". Economics, health care, FISA, all are too complex for the average voter to analyze, or even understand.

    This points to one of the most insidious problems we face. We are indefensibly at the mercy of individuals of lesser integrity in government.

    So, I have chosen my sources that I "believe in", and with some trepidation, defer to the positions of those sources.

    It isn't always a single source. I have tried to diversify my sources, and in lieu of my own familiarity and knowledge of a topic, I make my best judgement I can based on these sources.  

    The FISA bill was no different. Did I trust "all of the above"? No. However, when the ACLU, Dodd, Feingold, John Dean, all agree that this isn't good, I am then inclined to believe they are correct. The old saying "consider the source", is most applicable in regards to government and making decisions. I put faith in the sources that have proven to support my better interests, rather than those that have proven otherwise.

    What choice do we have?

    "America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves." (Abraham Lincoln, 1809-65)

    by Kairos on Sun Jul 20, 2008 at 07:31:35 PM PDT

    •  That's a good point. (1+ / 0-)
      Recommended by:
      Aunt Martha

      I generally agree with the diarist's stance that we all need to be doing this research for ourselves, but the truth is there is only so much time in the day, and we can't all be experts on anything.

      If nothing else that should temper our responses when we're intruding on areas we don't have much experience in.  And we do have to trust certain sources in order to make reasonably informed decisions - otherwise we'd never leave the computer, trying to catch up on every detail of every issue.

      I chose Feingold as my expert of choice for a couple of reasons: he's been the voice I've found most persuasive on this issue (his outlining of concerns with the new bill was far more in-depth than what any of the Yes votes provided to justify their votes), and since he sits on both the Judiciary committee and the select committee on Intelligence, I'm willing to grant him a bit more insider's knowledge about how this all works.  (The pettier side of me can't help but notice that the bill was unanimously supported by the Republicans, so take that how you will).

      That being said, I always appreciate a good diary to challenge my assumptions and provide alternative readings.  I'm still working with the issues in this one (and trying to get a few more lawyerly types to comment), so all-in-all this is a good thing.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sun Jul 20, 2008 at 07:56:13 PM PDT

      [ Parent ]

      •  Thank you. (1+ / 0-)
        Recommended by:
        pico

        I was OK with going with my favorite experts, who include the guys I mentioned here. But the bug in the ointment was that everything I've read led me to believe that Obama was a decent ConLaw expert and he and Lessig disagreed with the others.

        We can't all afford to individually research everything but at times when people of good reputation and intent disagree it comes to the point where rolling up the sleeves is needed.

        Just my 2 bits.

    •  we have the choice of not fully trusting (0+ / 0-)

      any particular source. I am in a situation where people I would normally trust disagree, so I very much appreciate the diarist's in depth analysis.

      My current opinion, which could easily change with new information, is that this bill is not as bad as many Kossacks think. There has been a lot of heated discussion about it,a lot of it by front pagers, that concluded Obama caved to political concerns.

      That's not to say it's a good bill either, and Obama admitted that, but he apparently thought the useful aspects of it outweighed the bad ones. That sounds more like the Obama  I got to know in his books than the "typical politician" that some here now label him.

      -7.75, -6.05 The point of the war in Iraq is that there IS a war in Iraq- Keith Olbermann

      by nicolemm on Mon Jul 21, 2008 at 09:09:10 AM PDT

      [ Parent ]

      •  About where I am (1+ / 0-)
        Recommended by:
        nicolemm

        Though I started out with very hard line emails to the Obama campaign over what I saw as capitulation, the reasoning that I've expressed here and the grossly over-stated claims that he's been "rushing to the center" by merely saying things he has said all along or which are completely in keeping with his background have moderated my view on him.

        He looks more and more like a well intended, principled moderate-left intellectual who thinks things through, pays attention to detail, context and nuance, when folks of the more rabid right and left want a more dogmatic extreme leftist to either castigate or support.

        He was nowhere near my first choice in the primaries, but I'll grant him that we seem to disagree here significantly on priorities, but his position appears reasonable.

        Again, all subject to change, based on more analysis and more details.

  •  telecom immunity (7+ / 0-)

    I don't think one can discuss FISA without discussing telecom immunity.  It legitimizes the Bush administration's claim that if the President orders someone to do something, it is legal.  Given that argument, and given that, as Mike Taylor notes, the AG and the DNI are presidential appointees (sure, they're confirmed by the Senate, but so were Ashcroft, Mukasey, etc.), it seems to me that the current FISA bill weighs heavily toward reinforcing the notion of an imperial presidency.  

    •  I think you can and we need to, for now (2+ / 0-)
      Recommended by:
      pico, Leslie in KY

      I'm still angry about immunity getting through. That was wrong, I am sure. But before I decide what the impact of my anger over that is, I need to understand what the FISA amendment portion of the bill means, in and of itself.

      If we keep them tangled up it makes the analysis too messy.

      •  I disagree (3+ / 0-)
        Recommended by:
        Miss Jones, NonnyO, Mike Taylor

        The procedures you outline above are, in part, dependent upon the activities of people, such as the AG, who are appointed by the president.  Given our current president's willful disregard of any law that interferes with his supposed Article II powers (see, e.g., his signing statements), which is how we got ourselves in this mess in the first place, what prevents "the collusion of two Senate approved officials," to quote your diary?

        Listen, I think it's great that you conducted this analysis, please don't get me wrong.  But I think the bill relies too much on the good faith of people from whom we have no expectation that they will act in good faith.  So, to me, the telecom immunity implicitly supports law-breaking.

        •  Well, actually... (1+ / 0-)
          Recommended by:
          Leslie in KY

          Have you read "SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS." of the new law? It doesn't realy solely on the AG and the NSA. semiannually they have to submit their assessments to the FISA Court, the congressional intelligence committees, and the Committees on the Judiciary of the House of Representatives and the Senate. There are also reviews conducted annually by the head of each foreign intelligence organization.

          A quick outline of that section is as follows:

          SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS.
             (a) Authorization
             (b) Limitations
             (c) Conduct of Acquisition
             (d) Targeting Procedures
             (e) Minimization Procedures
             (f) Guidelines for Compliance With Limitations
             (g) Certification
             (h) Directives and Judicial Review of Directives
             (i) Judicial Review of Certifications and Procedures
             (j) Judicial Proceedings
             (k) Maintenance and Security of Records and Proceedings
             (l) Assessments and Reviews

          and the whole section is about 4,500 words worth of detailed procedures.

          •  No I haven't, and you have, (2+ / 0-)
            Recommended by:
            Miss Jones, NonnyO

            and more power to you, I say!  But even as you outline it above, what safeguards are there that the AG and NSA will report accurately and fully?  What safeguards are there that the intelligence committees or judiciary committees won't get suckered in to illegal activities, as the intelligence committees seemingly have now?  What safeguards are there that the head of each foreign intelligence organization will conduct an accurate and full review?

            What's been demonstrated by telecom immunity is that there is no penalty for breaking the law, or for following the orders of the president over protecting the Constitution.  The new law seems to overly rely on goodwill that I don't think has been warranted.

            •  Good questions! (1+ / 0-)
              Recommended by:
              pico

              I agree whole heartedly on the immunity question. Obama said he was willing to accept the immunity of Title II in order to get Title I. I now see, I think, why he and Lessig and others think Title I was good. I still think he should have voted against the package. The reason is that I think immunity undercuts the power of Title I. In the end, on that trade-off I think you and I agree. I suspect Lessig does as well. He defended the making of the judgment call on weighing the one against the other but explicitly did not offer an opinion in that article on whether he agreed with how Obama balanced them.

              Beyond that basic agreement, you ask some good questions. How do we know all of this will work. The simple answer is that we don't. We can't. But that doesn't mean that it won't. There are some intended mechanisms

              First of all, there are two of them and the Senate has to approve them, and the Senate is beginning to learn that just letting the President have his way is not a great thing. Small comfort there.

              Second, the professional levels of the executive branch have actually been much better behaved than the political appointees, and have whistle blown when the laws are broken. Additionally, the intelligence services in my experience tend to play by the rules they are given.

              What weakens this is that the Bush administration made massive political hiring and firing decisions in the professional class of executive and gave them the most Ghu awful rules. The professional class has been compromised.

              Still you have to write the laws assuming that someone will follow them, and this law puts substantial burdens on the major appointees, the heads of the services, the intelligence and judiciary committees of both the House and Senate and on the FISA court and the FISA appeals court. It mandates oversight and regular reporting.

              By casting the responsibilities as widely as it does, I believe the hope is that there will be enough honest intelligence operatives, analysts, computer specialists, managers, service heads, appointees, judges, Senators and Congressmen that major abuses and crimes will come to light.

              BUT there is no guarantee. And that's where we come in. We need tounderstand the system, we need to know that there are some good and trustworthy people in the system, we need to see that those are supported and we need to make everyone know we are watching, understand and care passionately.

              And that's why it is important to see the difference between Obama and the Republicans. I believe I understand what he meant in that email his people sent me. I believe that on balance his heart is in the right place. I believe that he made a judgment call that disagrees with mine and which I will say is wrong, but did it in good conscience. BUT I will be watching him. I do not trust him as wholeheartedly on this as I do Dodd or Feingold or Wexler.

              On the other hand, the slimy criminal neocon hand is still all over the republicans. The Libertarians and real conservatives in the Republican party are beginning to turn on them, but so far they have the upper hand. And they must not be allowed to win.

          •  Even Sen Feingold has praised ... (0+ / 0-)

            Section 702...although those sections improvements were not enough to get his vote for the bill in the end....

            Obama/Whoever He Chooses '08 Winning Change for America and the Democratic Party

            by dvogel001 on Sun Jul 20, 2008 at 10:22:30 PM PDT

            [ Parent ]

  •  Excellent Diary (2+ / 0-)
    Recommended by:
    nicolemm, Kairos

    One of the best I've ever read.

    Sorry to say though, you're wasting your time around here, where the mantra is "FISA Bad. Rip up Constitution". To them, the FISA bill is the end of the Bill of Rights and every civil liberty known to man.

    Never mind that 90% of the people saying this stuff have never even read the bill, much less understand it.  Mostly, they just say it because they heard and read someone else with that opinion.  

    Again, outstanding diary...and a public service.

    "I drank what?" -Socrates

    by BraveheartDC on Sun Jul 20, 2008 at 07:45:01 PM PDT

    •  hello, strawman! (3+ / 0-)

      It's funny, but I'm scrolling up through the comments and seeing a bunch of people who opposed the FISA compromise having a civil conversation about this issue.  It'd be nice if you joined that level instead of taking potshots from the sidelines.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sun Jul 20, 2008 at 07:50:21 PM PDT

      [ Parent ]

      •  You're right (2+ / 0-)
        Recommended by:
        nicolemm, pico

        It's just that I've read so many FISA diaries the past few weeks declaring it the end of the world, that my fingers worked quicker than my judgement.

        You're right. I posted my comment in too much excitement from reading a well-reasoned diary, and too much haste from my frustration with the FISA hysteria going on here lately. I shouldn't have brought that in here.

        Point well taken.

        "I drank what?" -Socrates

        by BraveheartDC on Sun Jul 20, 2008 at 07:53:56 PM PDT

        [ Parent ]

        •  Apologies for the snap. (1+ / 0-)
          Recommended by:
          BraveheartDC

          I hit "post" sometimes more quickly than I should.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Sun Jul 20, 2008 at 07:56:42 PM PDT

          [ Parent ]

        •  It's funny (3+ / 0-)
          Recommended by:
          pico, NonnyO, Orange County Liberal

          I've read a few that are perhaps a bit over the top, but not this:

          It's just that I've read so many FISA diaries the past few weeks declaring it the end of the world

          The point is that, with telecom immunity, unless the courts rule the current bill unconstitutional, we will never know the extent and particulars of the illegal activities conducted by this administration with the assistance of many telecommunications companies.  So, to me, it's not just that the bill eviscerates the little bit that's left of the 4th Amendment, we may well never know how many other parts of the Constitution have been willfully violated.

          •  Yes (1+ / 0-)
            Recommended by:
            pico

            What really gets my goat is the Immunity thing. You are right. Because of it "we may well never know how many other parts of the Constitution have been willfully violated."

            But that's Title 2 of the bill.

            My question is, does title 1 actually, "eviscerate[] the little bit that's left of the 4th Amendment"? I was willing to believe it did until I read it and Lessig's comment.

            I'm furious about the immunity and accountability of this administration. BUT the question is will Title 1 lower the probability of future abuses. I begin to see why supporters think it will.

            •  I guess it in part comes down to (0+ / 0-)

              whether or not one thinks that Title 1 and Title 2 can and/or should be read or discussed separately.  I don't think that they can and/or should be.  While I appreciate the work you've done here to separate them, I'm not convinced.

  •  FISA was bad on its face. (1+ / 0-)
    Recommended by:
    Orange County Liberal

    Telecom immunity was NOT the major part of the badness. The major part of the badness has to do with oversight and the role of the judicial branch. Note that the AG is not a judge. Those are the people to whom appeals should be made if somebody is being unjustly wiretapped.

    In short, the problem is:

    1. Some things that were in the past done illegally are now legal.
    1. Some things that are still illegal and will still be done will not be able to be stopped.
    •  Can you elaborate? (0+ / 0-)

      I am concerned about any instances where the bill as passed will result in:

        "1.  Some things that were in the past done illegally are now legal.
        "2. Some things that are still illegal and will still be done will not be able to be stopped."

      As I read through the law and the various legal commentaries I didn't find them. That doesn't mean they aren't there, and certainly Turley, Feingold and Dodd talk as if there are. I just haven't sen them clearly delineated.

      ACan you provide details?

  •  I think you (2+ / 0-)
    Recommended by:
    pico, Leslie in KY

    did a great job here and obviously are now better versed on the subject than any "lawyer" here is I bet (I am one).  However, I think Title I "IS" much improved and needed to be updated...even the people in your poll agree.  Dodd agrees etc...

    The problem arises with Title II and the problem people had was that essentially, breaches of contract occurred which also may amount to criminal acts...those acts were given the assurance of "color of law" by the fed...the fed, in doing so, infringed upon constitutional rights.  So, Title I does go some distance to restore the what was left of the 4th, however, Title II puports to close the door on any redress for what occurred previously.  I think there are two threads with this bill, and hence why all of the amendments up for vote in the senate specifically address Title II nd essentially left Title I in place (I believe unless I am mistaken..not an expert)

  •  I'm sorry, but this is just bollocks. (5+ / 0-)

    "Bringing all foreign surveillance under this law" is another way of saying "making legal what was expressly illegal." It's a smokescreen to cover lawbreaking, nothing more.

    And "aligns the law with the Constitution?" FISA was more in alignment with the Fourth Amendment than this law, in that FISA required an independent court to provide oversight, not a couple of Administration running dogs.

    U.S. communications were already "protected" by the requirement to obtain a warrant under the existing FISA requirements - the new law adds nothing to that.

    "Making the AG and the NSA jointly responsible" is a clear abrogation of the Constitutional protections afforded by an independent judiciary. This is my first and most important sticking point on the FISA legislation - it is not the place of the law enforcers to decide what is legal and what is not. (As a former federal and state law enforcement officer, I speak with some experience on this point.)

    And how was the "criminal nature of stepping outside the law and the Constitution" less explicit under the previous FISA law?

    This whole diary reads like a convoluted attempt to provide political cover for the senators who voted in favor of the bill. I can't imagine who that might be intended to benefit . . .

    Ceux qui peuvent vous faire croire à des absurdités peuvent vous faire commettre des atrocités.

    by Orange County Liberal on Sun Jul 20, 2008 at 09:04:04 PM PDT

    •  I'm sorry you feel that way. (1+ / 0-)
      Recommended by:
      pico

      Believe me, I have been ranting about FISA, habeas corpus and the insurgency act for years now.

      I believe that you are misinformed in at least a few of your points.

      "Bringing all foreign surveillance under this law" is another way of saying "making legal what was expressly illegal."

      Not at all. The CIA spying on communications between Pakistan and Spain was not previously under this law and was not illegal. It was unaddressed. But communications betwenn Pakistan and Spain might travel over the same wires as communications between Spain and Boston or Hawaii and Boston. The law needed to be broader. FISA broadened the law to cover areas that were covered by no law. Not "previously illegal", but "previously unaddressed by US law". Those are not the same.

      U.S. communications were already "protected" by the requirement to obtain a warrant under the existing FISA requirements - the new law adds nothing to that.

      Actually, that's not at all clear. As I read the two laws, the old law, since it allowed US persons to be classified as "foreign agents" looks to me like it introduces uncertainties that the new laws focusing on whether any parties involved are located in the US or are US persons makes clearer.

      Additionally, US persons outside the US were not covered. To the extent that "U.S. communications" means communications of US citizens, the new law would appear to cover them better.

      "Making the AG and the NSA jointly responsible" is a clear abrogation of the Constitutional protections afforded by an independent judiciary.

      would be absolutely true except that Section 702 has extensive language making both the judiciary and the legislature responsible for explicit oversight on a regular schedule. As I read it, it pumps up the legislative oversight and increases the reporting responsibilities of the executive more than it increases judicial oversight and that may be a weakness.

      Finally,

      And how was the "criminal nature of stepping outside the law and the Constitution" less explicit under the previous FISA law?

      That's a good question and a subject I did not address in as full detail as perhaps I should. In part that's because though I may be a talented amateur, I am no lawyer and it does begin to stretch my knowledge. Let me explain a bit, and with luck someone will correct me.

      In general, the Constitution does not create crimes. If someone violates your Constitutionally protected rights, there is no specific crime involved nor grounds for a criminal trial or criminal sanctions. This is why there are all these civil suits brought when rights are violated. When your rights are abrogated you sue to get an injunction, you sue under habeas corpus, or you sue for damages.

      What this law says is, that procedures have to be adopted and those procedures have to be, among their many requirements, within the 4th Amendment. Failing to do so is a violation of this law and violations of this law are crimes. That means that rights violations become the subject not merely of civil law but of criminal law and can be investigated and prosecuted as crimes.

      At least that is how I understand it, as a layman.

  •  you don't like authority figures (1+ / 0-)
    Recommended by:
    Miss Jones

    but you begin with a quote from a famous person?  I find that an interesting tactic.  Or maybe it just stood out to me because it's the core problem I have with the FISA discussion this summer.  Specifically, it's Lessig's claim to know why Obama supported the bill that jumps out to me.  In the interest of keeping this comment limited, I'm going to focus on that point.

    [Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was.

    That's the thing about FISA, though.  Obama hasn't said why he supported the bill.  He hasn't said what's changed since he said he would stand with Dodd and Feingold during the primary season.  He hasn't explained why the changes are more important than the negative consequences from immunity.  Obama just says it's a good compromise, and he compares it to the Protect America Act, when it should be compared to the original FISA legislation. That's the whole point of sunsetting PAA.  It should just have been allowed to lapse.  The benefits claimed are how the original legislation works.  Obama's vague comments let him take whatever approach he wants when he takes office next year.

    I think that would be a very healthy discussion to have publicly.  What laws should our most powerful citizens be held to, and what laws do we let them break for the sake of passing other laws?  If there really is an argument for accepting immunity as a 'lesser of two evils' or as cost-benefit calculation where it (the cost) was less than the benefit (the amendments), let's hear that analysis officially from the Obama campaign.

    And even if you give Obama the benefit of the doubt and assume that while he voted for immunity for corporate lawbreakers, he doesn't really want said immunity, that still leaves the problem of the warrantless wiretapping.  The FISA amendments make a joke of the concept of a warrant.  A warrant is a document that describes a specific thing to be found in a specific place to be searched.  You're not suggesting that the bill Bush and the rest of the GOP were so excited about requires the Executive to get such a warrant every time, are you?

    One final way to look at it is the smell test.  If the details of the bill really are good, then why did Obama release a couple of statements that sound exactly like the the kind of PR jibberish politicians spew when they don't want people looking at the details?  Why won't Obama explain exactly what his thinking is for why this is a good compromise and why immunity for corporate law breakers isn't a dealbreaker? Why was the thing assembled in secret?  Why was it released at the last minute, with hardly any time to read the thing, let alone debate it? Why are the happy people the authoritarian GOPers and the upset people the Libertarian Party and the ACLU?

    •  Well, that first criticism isn't really fair. (0+ / 0-)

      the diarist never claimed to dislike authority figures, only suggested that they shouldn't be the end-all of our information.  Which we should all be able to agree on.  

      The quote prompted the research; the diarist clearly didn't stop there and suggest that Lessig should be taken without further discussion.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sun Jul 20, 2008 at 09:47:08 PM PDT

      [ Parent ]

      •  sorry, I guess that sounded harsher in writing (0+ / 0-)

        Pico, I just meant that the tactic of starting with a quote from Lessig seemed interesting given the discussion about trusting other sources.  I for one rely on other's observation a lot.

    •  Yup. It's a hard issue. (1+ / 0-)
      Recommended by:
      pico

      If the details of the bill really are good, then why did Obama release a couple of statements that sound exactly like the the kind of PR jibberish politicians spew when they don't want people looking at the details?

      Well, if you follow my brief, cursory, layman's analysis above you will see that the arguments for the new FISA bill, if I've gotten them correct are complicated, require both legal and technical understanding, and involve decided trade-offs. Boiling them down into chunks suitable for a campaign newsletter or speech, even the sort that Obama gets criticized for being an elitist collegiate egghead for, results in a lot of handwaving. And handwaving in this area looks a lot like what the administration does to excuse its excesses and its crimes.

      That's a problem. It makes it really hard to be an informed voter on this and it makes it very hard for those of us who are civil liberties fanatics to not fly off the handle. (You should, by the way read some of the heated email I sent the Obama campaign before I did this analysis.)

      And yes, I do have a problem with just accepting things because authority figures pronounce them. That's why I'm an independent and not a party member. Its why I am a Deist and not a Christian. But life is too short to study everything yourself, so like everyone, I pick up opinions from people I respect.

      BUT... On the one hand I test my experts every now and then and do the homework myself. And two, I watch out for when two or more authorities that I respect disagree with each other. I am on Dodd, Feingold, Wexler and Obama's email lists and I read Greenwald every day. They were all pretty much in agreement on FISA and I didn't question it.

      Then two things happened:

      1. Obama responded to the pressure that tens of thousands of us put on him through the group at my.barakobama.com and personal email, with a message that said the benefits of the improvements in Title I outweighed the problems with Title II, and
      1. Lessig wrote that while he wasn't sure that Title I was more important than Title II, the Title I benefits were important.

      And I ask "Huh? Waht Title I benefits. It shreds the 4th amendment." And I decided to read the bill. And read people who read the bill. And a week or more passed while I did that and I came out going "Ohhh... So that's why the experts I listen to disagree."

      And here we are.

      Read the bill.

      •  That's precisely why I want Obama on the record (1+ / 0-)
        Recommended by:
        jawboneblues

        Reasonable people can obviously have differing interpretations.  That's sort of proven prima facia by diaries like this one.  My interest is what the Democratic candidate's position is.  Feingold isn't running for president.  The ACLU isn't running somebody for president.  The Libertarians are running somebody for president, but it's not likely I would vote for him.  To be honest, when the ACLU and the Libertarian party agree on legislation, I almost always concur.  Personally, I value their combined interpretation of the rule of law and the Constitution pretty highly.

        I want to know what Obama thinks of warrantless wiretaps and the IG certifications and so forth now, before he has that power at his fingertips.  We can debate this back and forth indefinitely, but so long as it's all surrogates of the Obama campaign, Obama isn't attached to any particular justification or interpretation.

        At the Obama house meeting tonight I'm going to ask the Fellow what the current position from the campaign is on this.  I'm curious if there's any more to the official response than the last statement.

  •  Tipped and Rec'd (0+ / 0-)

    for in-depth analysis, level-headedness and bravery in a blogasphere full of hyperbole.

    I have tried to bring up the positive aspects of section 702 many times here with little success.

    Some at DKos would even disagree that we should be able to do warrantless survelance on "Foriegn to Foriegn" communications and that the 4th ammendment applies to all citizens of the world and just not the US citizens...I respectfully disagree with that assertion.

    Peace...Go Democrats..

    Obama/Whoever He Chooses '08 Winning Change for America and the Democratic Party

    by dvogel001 on Sun Jul 20, 2008 at 10:17:54 PM PDT

    •  You're welcome, and I know... (0+ / 0-)

      Some at DKos would even disagree that we should be able to do warrantless survelance on "Foriegn to Foriegn" communications and that the 4th ammendment applies to all citizens of the world and just not the US citizens...I respectfully disagree with that assertion.

      The first two reviewers who saw and heard my arguments both asserted that the rights protected by the 4th Amendment are universal human rights, and thus my

      From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.

      In ethical principle I kind of agree with them. But the law ain't there. Maybe we're Progressives because in a century the law might go that way?

  •  FISA Revisited (2+ / 0-)
    Recommended by:
    Vox Libertas, jawboneblues

    Thanks for the analysis and link -- I've linked back and done some further reflecting here: http://www.ketchupandcaviar.com/...

    -- Wes Walls

  •  The new FISA law (0+ / 0-)

    was not needed to bring electronic surveillance back under the law as that was done by the ninth circuit court ruling that the original law was the only controlling authority.
    http://www.aclu.org/...
    The link is to a simple explanation of the ACLU suit to overturn the new law based on its violation of the 4th amendment. Under the new law the government doesn’t have to identify its surveillance targets at all. The 4th requires  "and particularly describing the place to be searched, and the persons or things to be seized." This is just one of the defects in this legislation.

    •  Re: the 9th Circuit Court ruling (0+ / 0-)

      The new FISA law was not needed to bring electronic surveillance back under the law as that was done by the ninth circuit court ruling that the original law was the only controlling authority.

      Please note, that the new law does not merely "bring electronic surveillance back under the law". It expands the FISA law to cover areas not previously covered. Specifically, the 9th found that FISA was the exclusive means by which the "executive branch could undertake electronic surveillance and physical searches for foreign intelligence purposes in the domestic sphere". The new FISA bill expanded that control to cover surveillance that is outside the domestic sphere, as I read it.

      That distinction is important.

      •  Brining it back under the law was the (0+ / 0-)

        rationale Senator Obama used in a press conference as his excuse for voting for it that is my reason for debunking that particular claim.

        •  A couple of things bother me about that. (0+ / 0-)

          The problems I have with that are multiple. The first is that it is not really responsive to my diary. I'm trying to understand what the act actually says, allows and proscribes. Debunking something said by Obama doesn't help me with the intent of this diary, nor does it address the analysis I've presented.

          Beyond that, one of the reasons that I entered into this whole effort was to attempt to understand what was meant by Obama, Lessig, and even more staunch opponents when they said there weer good things in these amendments. The assumption that Obama was "making excuses" rather than having reasons or beliefs is pre-deciding the question. Lessig in his own blog was attacked for making excuses, rather than being evaluated as having made an honest argument. I'm trying to examine the actual law, and its actual consequences in part to decide how I feel about Obama's decisions which have so angered me.

          Finally, even if a court over-ruled a lower court as to legislative intent on July 2, that doesn't put the issue finally to rest. It is always possible that that ruling could be reversed. It is still reasonable for the legislature to make the law explicit, leaving no room for interpretation. And for Obama to have written the reply that he did to our group on July 3 that gave a reason not dissimilar to your paraphrase is not unreasonable.

          Sorry. I'm just trying to work through all of the pontificating and pronouncements and find the actual reasoning in all of this.

          •  How can you claim it is not responsive to your (0+ / 0-)

            diary

            [Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.

            is this not the beginning of your post?

            •  Well... sort of... (0+ / 0-)

              That quote is the thing that made me do the research and the analysis. It was there only as contrast to the views of so many on the left that the FISA amendments shred the 4th Amendment. I don't embrace either of those views. The mere fact that they are in conflict is why I went to the work of writing the diary. That quot is merely the motivation for the analysis that is the real content of the diary.

              That quote simply isn't part of my analysis.

    •  Re: The ACLU case. (1+ / 0-)
      Recommended by:
      jawboneblues

      It may surprise you, but I think that the ACLU's case is important. They make some very credible arguments that the law is flawed and that it provides insufficient protection. That is possible, distinctly so, but until a court rules we cannot say.

      One of the frustrating features of Common Law is that in many cases you cannot tell if a specific action is legal or illegal until a court hears a case in that area. Until there is precedent, the interpretation of the law is nothing but personal opinion. Test cases become very important.

      Likewise issues of Constitutionality must be tested in the courts. This is one of the reasons that preemptive immunity is such a bad idea. (Please note that the telco immunity in Title II is objectionable not merely for being retroactive but preemptive. It was a really bad idea.)

      There's one odd and interesting aspect to the ACLU suit. It claims that the FISA law violates the 4th Amendment despite the fact that in several places it sates that the procedures used under it must be consistent with the 4th Amendment. They allege that FISA allows broad sweeping surveillance that is clearly in violation of the 4th, but if it is, then, as I read the law, it does not permit them.

      But the key here is the "as I read the law". We don't know. They may be right. The only way to know is for it to be decided by a court.

      In the end, there is nothing contradictory in believing that the FISA ammendment is intended to improve and strengthen the law and supporting the ACLU's suit testing the law. For it to work it must not only attempt to stay within the Constitution. It must succeed.

  •  You forget one other 'possibility'. (1+ / 0-)
    Recommended by:
    nicolemm

    US intelligence services may make a 'friendly' suggestion to a foreign intelligence service, such that intercepts be made of US-foreign communications, or even US-US (though that is more problematic).  Then the 'take' may be shared.  Technically not a violation of even the 'old' FISA, as US intelligence services did not conduct an intercept.  Not very common, but not unknown, either.

    Very good diary.  Cheers:)

    Life is not a 'dress rehearsal'!

    by wgard on Mon Jul 21, 2008 at 12:59:12 AM PDT

  •  PUT DOWN THAT POSTCARD (1+ / 0-)
    Recommended by:
    jawboneblues

    Comparing e-mails to postcards is not a useful analogy for discussing the new FISA amendments because intelligence agencies have the technological capacity to make most communications as transparent as a postcard, but that does not give the government the legal authority to engage in surveillance of such communications.  Much of my opposition to the new FISA amendments is due to the cynically crafted grant of immunity to the telecommunication providers that assisted with the so-called Terrorist Surveillance Program, but I am also upset by the targeting procedures that are a primary focus of the new FISA amendments.  These targeting procedures are the demon spawn of the Protect America Act of 2007, and it is worth mentioning that, although FISA as it existed prior to the most recent amendments did not apply to U.S. persons outside of the United States, the rights of U.S. citizens and legal U.S. residents were theoretically protected by Section 2.5 of Executive Order 12333 during any period in which they were outside the United States.    

    It should not need stating, but due to to obfuscations by apologists on behalf of the new FISA amendments, I will emphasize that a person does not have to be inside the United States on a continuous basis to be a U.S. citizen, and a person does not have to be inside the United States on a continuous basis to be a legal U.S. resident.  Section 702(a) of Title VII of FISA has been amended to state: "PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS.  (a) Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.  Section 702(c)(2) of Title VII of FISA has been amended to state: "DETERMINATION- A determination under this paragraph and for purposes of subsection (a) is a determination by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subsection (i)(3) prior to the implementation of such authorization."   Section 702(c)(4) of Title VII of FISA has been amended to state: "CONSTRUCTION -- Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States."  Section 702(d)(1) of Title VII of FISA has been amended to state: "Targeting Procedures-- (1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to-- (A) ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and (B) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."  Subsection 702(g)(4) of Title VII of FISA has been amended to state: "LIMITATION- A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted."

    Despite the limitations in Section 702(b) of Title VII of the new FISA amendments, the language in the new FISA legislation that is cited in the preceding paragraph has been crafted to allow the government to engage in electronic surveillance of most international communications without specific targets and without court orders and without any determination that there is probable cause for surveillance of the electronic communication of a particular person, even in those situations in which the international communication is sent by and/or received by a U.S. citizen or other legal U.S. resident.  This was done intentionally to satisfy complaints by the Director of National Intelligence about the significant limits of modern technology with respect to identifying targets and the location of targets.  Even though most supporters of the new FISA legislation try to avoid discussing the details of the massive surveillance of innocent Americans that has been occurring and will continue to occur, they betray their obfuscation by repeated references to minimization as the treatment for the injury they have inflicted on our Constitution.  Because intelligence agencies have neither the information nor the capability to target individuals and groups effectively at the source of the electronic communications, they rely on massive unfiltered surveillance to detect potentially suspicious communications.  It is similar to reading everyone's mail to determine which mail should be read.  Our government is using surveillance of most international communications as a means to obtain evidence of probable cause for additional surveillance.  Many people may approve of this, but it is contrary to the Fourth Amendment to the Constitution.  To argue that FISA needed to be "modernized" is a smokescreen for the mindset that we must allow our government to use the most advanced technology that is available to violate the Fourth Amendment to the Constitution.  The fact that Section 702(b) of Title VII of FISA states that procedures must be conducted in a manner that is consistent with the Fourth Amendment to the Constitution is intended to mollify critics of the new FISA amendments because this entire section of the law has been written in a manner that will allow the government to circumvent the Fourth Amendment to the Constitution.

    One of the hollow arguments raised by supporters of the Bush Administration is the allegation that critics of the Terrorist Surveillance Program want foreign terrorists to be protected by the Fourth Amendment to the Constitution.  Critics of the Terrorist Surveillance Program are NOT arguing against the surveillance of foreign intelligence targets, and neither warrants nor probable cause is needed to direct surveillance against foreign intelligence sources.  In August 2007, Director of National Intelligence Mike McConnell indicated that an adverse Foreign Intelligence Surveillance Court (FISC) ruling in Spring 2007 led to efforts by the Bush Administration to lobby Congress for the Protect America Act that was  passed at the beginning of August 2007 (just before Congress left Washington for its summer recess and in response to fake threats of terrorist attacks that were circulated by the Bush Administration and the Republicans in Congress).  Also in August 2007, House Minority Leader John Boehner stated that the FISC had issued a ruling prohibiting intelligence agents from intercepting foreign-to-foreign calls passing through the United States.  Some opponents of the Protect America Act of 2007 suggested that FISA could be amended to allow intelligence agencies to monitor foreign-to-foreign communications that pass through circuits in the U.S., but Director of National Intelligence Mike McConnell told the Senate Judiciary Committee on September 25,  2007 that the Bush Administration would not accept this accommodation.  In his testimony before the Senate Judiciary Committee in September 2007, Mr. McConnell stated that he would oppose any language that would amend FISA only to exclude "foreign-to-foreign" communications from the scope of FISA because the intelligence-gathering agencies cannot demonstrate with certainty that those people with whom their targets will communicate would be exclusively outside the United States and because such language would not enable intelligence-gathering agencies to monitor communications of foreign intelligence targets outside the United States who may communicate with a "sleeper" or co-conspirator who is inside the United States.  These are specious arguments because FISA, as it existed prior to, and as it existed subsequent to, the Protect America Act of 2007 (which expired February 16, 2008), did not require intelligence-gathering agencies to predetermine whom their foreign intelligence targets would contact, and also FISA did not require intelligence-gathering agencies to guarantee that communications from foreign intelligence targets would be exclusively between persons located outside the United States.

    At a meeting on March 3, 2008, and in response to a question from David Kris (a former Federal prosecutor), Assistant Attorney General for National Security Kenneth Wainstein said that FISA, as it existed before and after the effective life of the Protect America Act of 2007, did not apply to foreign-to-foreign communications that are routed through a location in the United States.  The primary concern according to Mr. Wainstein is e-mail, because "essentially you don't know where the recipient is going to be" and so intelligence agencies would not know in advance whether the communication is entirely outside the United States.  The surveillance powers sought by the President and his subordinates via the Protect America Act of 2007, and via new FISA amendments, far exceed the authority necessary to circumvent the alleged impediments imposed by FISA relative to foreign intelligence targets.  The reason for the disinformation by the Attorney General and the Director of National Intelligence is that the Bush Administration does not want to admit that it has engaged in massive unfiltered electronic surveillance, without warrants and without probable cause, of all electronic traffic coming into the United States.   The new FISA amendments provide the Bush Administration with an umbrella of authority to continue this massive unfiltered electronic surveillance, without specific targets and without warrants and without probable cause, in a wide variety of circumstances, involving U.S. citizens and other legal U.S. residents, that require warrants under the Fourth Amendment to the Constitution.

    In November 2007, Mark Klein, a retired AT&T technician, visited Washington D.C. to furnish information to members of Congress, congressional staff members and journalists about his personal knowledge of "wiretapping" by the National Security Agency (which directed the Terrorist Surveillance Program), including massive unfiltered electronic surveillance of Internet traffic and telephone calls to and from U.S. citizens.  The information disclosed by Mr. Klein has been an integral part of a pending lawsuit (Hepting v.  AT&T Corp.), yet this information had received little media attention prior to Mr. Klein's trip to Washington.  On December 19, 2007, Ryan Singel reported for the WIRED magazine blog "THREAT LEVEL" that information obtained via a request under the Freedom of Information Act by the Electronic Frontier Foundation from the FBI, in an end-of-year report compiled by the FBI's Telecommunications Intercept and Collection Technology Unit, revealed that the FBI's software for recording telephone surveillance of suspected spies and terrorists intercepted 27,728,675 sessions in 2006.  The report did not explain the methodology, but such reports indicate that the surveillance was not targeted with much precision.

    On February 28, 2008, Babak Pasdar (a computer security consultant) filed a seven-page affadavit with the Government Accountability Project explaining that, while he was working to revamp security for a major telecommunications carrier, he discovered a link referred to as the Quantico Circuit that was passively giving a third-party (the center of the FBI's electronic surveillance operations is in Quantico, VA) "access to the billing system, text messaging, fraud detection, web site, and pretty much all the systems in the data center without apparent restrictions."  Kevin Poulson, writing for the WIRED magazine blog "THREAT LEVEL", reported on March 6, 2008 that Mr. Pasdar, now CEO of New York-based Bat Blue told ''THREAT LEVEL", "I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that."  Mr. Pasdar was not permitted to name the carrier, but Mr. Poulson reports that: (1) Mr. Pasdar's affadavit for the Government Accountability Project is nearly identical to an affadavit contained in a lawsuit filed against Verizon Wireless in 2006;  (2) Because the data center was a clearing house for all Verizon Wireless calls, the transmission line provided the Quantico recipient direct access to all content and all information concerning the origin and termination of telephone calls placed on the Verizon Wireless network as well as the actual content of calls;  (3) The transmission line was unprotected by any firewall and would have enabled the recipient on the Quantico end to have unfettered access to Verizon Wireless customer records, data and information;  (4) Any customer databases, records and information could be downloaded from this center.

    On January 17, 2007, former Attorney General Alberto Gonzales stated in a letter to the Senate Judiciary Committee that the Terrorist Surveillance Program would not be reauthorized by the President, and that any electronic surveillance that was occurring as part of the Terrorist Surveillance Program would henceforth be conducted subject to the approval of the Foreign Intelligence Surveillance Court (FISC).  On January 18, 2007, the Washington Post reported that Bush Administration officials would not discuss details of the proposed FISC supervision of the surveillance program.  For example, Bush Administration officials would not say whether they would be required to seek a warrant for each person they sought to monitor or whether the FISC has issued a broader set of orders to cover multiple cases, and an official who spoke on condition of anonymity characterized the change as "programmatic" rather than based on warrants targeting specific cases.  During oral arguments in January 2007 by Federal attorneys appearing before the Sixth Circuit Federal Appeals Court to seek reversal of the Federal District Court judgment against the National Security Agency, the government maintained that the President had the authority to resume the Terrorist Surveillance Program outside of of the guidelines legislated under FISA.  The passage of the Protect America Act in August 2007 temporarily codified important elements of the illegal Terrorist Surveillance Program.  Senator Obama stated that the new FISA amendments are not as bad as the Protect America Act of 2007, but that is damning with faint praise, because the new FISA amendments essentially legalized the illegal Terrorist Surveillance Program.

    Obviously, it is much easier to engage in foreign intelligence via massive unfiltered electronic surveillance of communications networks, but that is not a valid argument because it also would be much easier for domestic law enforcement agencies to conduct domestic law enforcement investigations if they were allowed to engage in massive unfiltered electronic surveillance of communications networks.  President Bush and the Attorney General and the Director of National Intelligence stated that the surveillance that could be obtained via the new FISA amendments was of so little value that the President would veto the most recent FISA legislation IF it included the amendment offered by Senator Bingaman that would have delayed (but would not have removed) the grant of immunity to the affected telecommunication providers until after the report by the Inspectors General that is required by the new FISA amendments.  In other words, avoiding a delay in the grant of immunity to the affected telecommunication providers was more important than the intelligence that would be obtained via the new FISA amendments.  The defeat of Senator Bingaman's amendment revealed the total hypocrisy of the new FISA amendments.  No rational people are denying that threats from foreign terrorists exist, but these threats have been greatly exaggerated, and no rational people should deny that threats from unethical political leaders exist.  We are supposed to be a nation of laws and not of men because the rule of law is more constant than the vagaries of politicians such as Richard Nixon and George W. Bush, but the new FISA amendments establish procedures for the Executive Branch to avoid judicial oversight despite the fact that any oversight by the FISC would be behind closed doors.  Historically, we have determined that it is possible to protect ourselves within the framework of our Constitution, but as a result of constant fear-mongering from our elected leaders and from the corporate media, it seems that a diminishing number of people are convinced of the importance of that principle.

    •  Ummm... (0+ / 0-)

      Did you actually read my diary or just look at the pictures?

      Comparing e-mails to postcards is not a useful analogy for discussing the new FISA amendments because intelligence agencies have the technological capacity to make most communications as transparent as a postcard, but that does not give the government the legal authority to engage in surveillance of such communications

      The whole point of the section which includes the picture is that the Constitution and Common Law gives different protections to the address and content of an email message, but absent any content encryption, both are available in the clear, essentially the way that they are on the postcard. This is the whole point of my analogy. You rather accurately paraphrase me in the quote above.

      As to the rest of your comment, I will have to wrestle my way through it as it lumps the new FISA changes and the Protect America Act and the (criminal) behavior of the Bush administration into one big hodgepodge.

      Much though you would like to paint this diary as an apologist whitewashing, I am trying to understand what the law actually says and implies.

  •  I APOLOGIZE (1+ / 0-)
    Recommended by:
    jawboneblues

    It is my fault, but I did not mean to accuse you personally of being an apologist for the new FISA amendments, and I apologize that I did not make it clear that I was not attacking you personally.  My reference to apologists for the new FISA amendments was related to comments that I have seen posted in several forums attempting to divert attention from Section 702 of Title VII of the new FISA amendments because the title of this section ("PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS") initially might not appear to be relevant.  However, when the language of Section 702 of Title VII of the new FISA amendments is analyzed, it is clear that U.S. citizens and other legal U.S. residents are not protected by the implementation of these targeting procedures.

    I did read your diary, and my comment about the postcard analogy was with reference to your statement that e-mail is more like postcards than letters in envelopes.  The distinction between postcards and letters in envelopes does not seem to be relevant if the discussion is solely about the address of the sender and address of the intended recipient because most letters in envelopes contain the address of the sender and the intended recipient on the envelope  If our intelligence agencies were only monitoring and recording information about the source and destination of communications, there would be less to worry about, but government surveillance is not limited to identification of communications sent by or received by known foreign agents.  Instead government surveillance searches the content of most international communications for elements of communications that are considered to be potentially suspicious.  Even though "probable cause" is not established to engage in the initial screening of most international communications involving U.S. citizens and other legal U.S. residents, our intelligence agencies are analyzing the content of these communications to determine whether further action is warranted, and the information that is obtained from this surveillance will be used to help establish "probable cause" for warrants.  I have read comments that such screening is not unconstitutional because the Supreme Court has allowed police to use highway checkpoints (MICHIGAN DEPT of STATE POLICE v. SITZ) to help stop drunk drivers, but the Supreme Court did not rule that police can establish continuous checkpoints on all roads on a permanent basis.

    Contrary to your assertion, I did not lump the Protect America Act of 2007 and the new FISA amendments and the criminal behavior of the Bush Administration into one "hodgepodge".  I merely showed that there is e connection among these different moving parts.  You may or may not think that the new FISA amendments are a threat to civil liberties, but I think that the new FISA amendments are a more elaborate version of the illegal Terrorist Surveillance Program, and the new FISA amendments move us closer to more comprehensive surveillance.

    •  Sorry not to get back quicker (0+ / 0-)

      Here's the thing. The whole point of this diary is to analyze what the results of Title I of H.R. 6304, which amend Title VII of the original FISA Act are. When you say

      However, when the language of Section 702 of Title VII of the new FISA amendments is analyzed, it is clear that U.S. citizens and other legal U.S. residents are not protected by the implementation of these targeting procedures.

      I find it both tantalizing and frustrating, because as the whole of the diary must show, I don't find it clear at all. It may very well be true, but I haven't yet found it to be clear. Your assertion that it is clear doesn't help me in my quest for understanding. Can you, as they used to say back in school "show your work"? A clear exposition of your position would be hugely helpful.

      By the way, yours is not the only such declaration that I find frustrating. I was listening the other day to Greenwald debating Cass Sunstein on this, and rather than explain why FISA was so bad, Greenwald kept waving the "Civil Libertarians agree that.." line as Sunstein without actually explaining, despite both Sunstein's disagreement and that of folk like Lessig and Mort Halperin who take a contrary view. My experience is that when Greenwald shows his work I find his thinking and his explanations to be excellent. But in this instance he argues from authority, from past behavior and from what is obvious. And that doesn't enlighten me on the "language of Section 702".

      As to the post cards, I think you are still missing the point of the analogy. In scanning email passing through the Internet trunks there really is no technical equivalent of "opening the envelope", the bits are all in the clear. If the message passes through a scanning system, all of the bits: the address and the content pass through it. Looking at the content isn't a matter of doing something really different than looking at the content. It's not like opening the envelope. Rather, failing to look at the content is more like covering the left side of the postcard.

      The key aspect of the ill-fated postcard analogy is that a system that sorts messages into those that can be read and those that cannot must be capable of reading those that cannot. The question of whether it is using a legal or illegal procedure for sorting messages into those that can be viewed by a human without violating the law or Constitutionally protected rights requires substantial technical as well as legal knowledge. Did it cover all the protected information until less protected information said it could be revealed?

      As I read the law, those questions are covered under the targeting and minimization procedures. The law says that such procedures must be developed and reviewed. It doesn't try to codify them directly in the law. That makes sense to me. Whether you think that email is like postcards or that ogres are more like onions or layer cakes isn't the point. The point is that the compound Pen Register + Trap and Trace Device + Analytical Engine is sufficiently complex that the programming of the Engine is where the violations of the Constitution are going to take place. And that is a bitch to codify in law,

  •  Deserved a rec for the effort alone (0+ / 0-)

    Vox Libertas,

    Thanks for doing your own analysis of the FISAAA bill and for laying it out in this diary.  I came upon the diary late, and barely had the chance to rec it before time ran out.  Then, I actually printed it (and Wes Walls 'FISA Revisited' at Ketchup and Caviar) so that I could study it - a paper copy of a blog - how rare!

    I, all too often, do rely on the experts to form an opinion.  However, in this case, I also had decided that I needed to read the bill (although I still needed to rely on the experts to guide me in my analysis).  In this case, before I joined the first major swell of opposition to Obama, who was my first choice candidate, I figured I better know what it was that I was actually opposing.

    However, I am not a lawyer and I spent several weeks reading the bill (and the original FISA legislation, past versions of the bills to amend FISA and proposed amendments to the these FISA amendment bills) and studying various articles about the bill - and I still have a woefully incomplete understanding of what it actually is meant to authorize (and I fear that this is by design). Partly this is because some key terms in the bill (such as 'targeting') are undefined and the programs being authorized are highly complex and shrouded in secrecy.

    Nonetheless, after much frustration, I essentially decided that, overall, in spite of some 'improvements', the FISA amendment provisions were not at all a good thing.  The sections that I find most troubling (leaving aside the Title II immunity provisions) are the Title VII, Section 702 provisions of H.R. 6304, because these sections appear to permit unwarranted and warrantless, bulk collection of Americans’ international communications without any evidence of probable cause.  Considering the scope of permitted acquisition of information, I think that the requirement that minimization procedures applied to the international communications of US persons be "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information" does not, since the definition of foreign intelligence information is so broad, set a very robust protection .

    Since I was still not fully satisfied with my grasp of the FISA amendment provisions, I was interested in reading another take on the problem. I applaud the effort - I think the diary also did well in eliciting some high quality responses.  However, I still find myself agreeing with the counter-analysis provided in this blog by Blaine Kinsey and with Wes Walls points in his blog.

    More and better Democrats -- electees and electors

    by jawboneblues on Mon Jul 21, 2008 at 11:56:57 PM PDT

    •  Thank you (1+ / 0-)
      Recommended by:
      jawboneblues

      It was this sort of reply that I was looking for. Not agreement. I can get that from a mirror, but thoughtful criticism.

      Wes and I don't disagree much. His latest page makes a lot of sense to me, and your concerns do, as well. I suspect that you are right, that this law leaves too much room for abuse and needs to be fixed. If so, we can hope that the ACLU suit will help show that, or that under an Obama administration the IG reports will show up something that gets some traction.

      But in the end, I think the real hope in this area is, well... us. The Net root civil libertarians who are dogged and determined to see all of the various assaults on liberty dealt with: This law, habeas corpus, and so on.

      I certainly don't agree with Obama on H.R. 6304. Title II was terrible, and even if Title I was an improvement in some ways, it is still terribly flawed and trading it off against the damage of Title II seems a poor trade. But, this research suggests to me that while he made a poor judgment call, it wasn't the outright conscious betrayal of liberty that some see, and thus, if he is elected, we may hope for some support from him for efforts to repair the damage. I don't know taht we can count on him to lead it, but understanding and support seems far more likely to come from him than McCain.

      •  thanks for the thanks! (0+ / 0-)

        I am actually a relatively low-profile contributor.  I read far more than I blog or comment.  (Someone always seems to capture what I want to say better or more thoroughly.)  The effort that went into my response does not merit much thanks, but I appreciate it.  One of the reasons I applaud your diary is that I suspect that if I had actually gone through the exercise of creating a diary on this subject, I would have more confidence in my grasp of it.

        I agree that the "real hope in this area is, well... us."  I also spend time with my boots on the ground.  I continue to work with the Obama campaign – as well as with the "Get FISA Right" group.  Although I had to go through a period of reconnection with my enthusiasm for Obama and his campaign, the best capture of the reason why I continue to support Obama was supplied by 'snout' in a comment here on Daily Kos.  

        I also think (largely on faith!) that Obama understands the implications of this bill. So why did he support it?  I do not think that he made a good argument for his support of it in his response to the ‘Get FISA Right’ group.  When he said

        The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise.

        he may have been alluding to the fact that H. R. 6304 would 'modernize' FISA - including modernization related to the surveillance of different classes of wholly international communications from equipment and electronic storage located inside the US. (Unfortunately, the entire discussion of why FISA ‘needed’ to be modernized is also pretty complex (as you’ve seen in one of David Kris's posts), and, again, I do not have it mastered.)

        Of course, the bill does far more than that.  I also hope for "support from [Obama] for efforts to repair the damage" but continued pressure, especially in the absence of crystal-clear pronouncements on his plans on this front, if he gains office, is needed.  

        More and better Democrats -- electees and electors

        by jawboneblues on Tue Jul 22, 2008 at 06:58:38 AM PDT

        [ Parent ]

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