Thursday, February 28, 2008

The maladministration lies ... and in other news, dog bites man

From the official White House web pages, this 'background' briefing:
SENIOR ADMINISTRATION OFFICIAL: Okay, that's what the Foreign Intelligence Surveillance Act of 1978 did, and that is what the legislative history specifically says, and that's what the Foreign Intelligence Surveillance Act says. I can get you the actual text. We can furnish that to you. I mean, it's plain as day. I could pull up the quote right now that says this law specifically exempts the international signals intelligence activities conducted by the National Security Agency.

What it said, though, is if you're doing your mission here in the United States you need a court order. So if you're targeting a U.S. person here in the United States, to intercept their communications you need to get a court order. That was the balance that was struck in 1978.
[my emphasis]

This is what 50 USC § 1801(f)(1) provides:

(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

In 1978 -- let me divide the worlds of communications into wire and wireless -- 1978, wireless communication; radio and satellite, primarily for our international communications system. Fast-forward to today -- 90 percent I think, or so of the international communications systems carried in a glass pipe; a wire, for purposes of FISA. So we've had a huge shift from what was radio and satellite in 1978 now to wire, to fiber optics -- a huge, massive shift....

The international communications system is also routed through the United States in many cases. Extraordinarily cheap to use this fiber optic system, a large price advantage over other types of wireless communication.

What caught us -- what got us caught up was, in 1978, when they did the law, when they thought of wire, they thought of privacy, and if you're on the wire that is what they use to define when we would need to get a court order, exempting this international activity by exempting out the radio and satellite communications mission that we do.

So we had this shift. I think in this debate, I think everyone has agreed now that FISA needs to be modernized to reflect the technologies of today; that they wrote FISA in 1978 to reflect the way the technology was then. I think everyone is basically on board with the fact that we need to have FISA modernized.

That brings us to the Protect America Act and the passage of the Protect America Act. The Protect America Act said, if you are targeting a foreigner overseas, you do not need a court order. But it went one step further than what was even in the 1978 act. It said, for your targeting procedures, to intercept that foreign communication you need to have those procedures submitted to the FISA court and approved by the FISA court. In 1978, our mission to target international communications, the FISA court had no role in that.

We did submit those targeting procedures in August. The FISA court approved those in January of this year.
A substantial portion of the international traffic was conveyed on cables back then too. It would make no sense back then to give more protection to those people whose calls were routed (without any choice on their part) over "wires" and less to those phone calls which were transmitted in part via satellite (radio) links. The section that purports to cover "radio communications" (as opposed to "wire communications") is § 1801(f)(3) [link above]:

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;

This section talks about "sender" and "all intended recipients", and applies to the case where the intended communications is purely domestic. But there is no "sender" for telephone calls; they are between two specific people generally with both of them "sending" and "listening", and the word "intended" seems to indicate a passive and optional role for "recipients", so to talk about "all intended recipients" clearly implies that this section referred to broadcast radio transmissions (such as HAM and other short-wave) with a single sender and multiple (or even no) listeners. Such broadcast is not usual (and not even possible) for phone conversations.

Contrary to the suggestions of the maladministration (and others) that this "radio" versus "wire" distinction allowed the NSA to snoop on satellite phone calls because they were "international" back then and happened to be carried on one leg by radio, but not the smaller number of cable phone calls, what makes a lot more sense is to consider the "wire" communications to be what it always has been: people's phone calls, which are essentially all conveyed at least in part over "wire" (to/from the switch office, over domestic long-distance links, etc.). It is theoretically possible that the NSA (or others) carefully crafted and inserted a linguistic "loophole" in FISA by which they could snoop on [some of] the international calls of U.S. persons in the U.S. by the fortuitous routing of these calls via satellite ... but other than providing such a loophole (and assuming that Congress wanted to leave in such a loophole with a nod and a wink), it's really hard to read and interpret the law as doing such.

The maladministration argument, that the "radio communication" provision -- by dint of excluding from FISA restrictions the intercept of any such communications where even a single "party" was foreign -- allowed all U.S.-to-foreign communications to be snooped (as long as we weren't specifically "targeting" a "U.S. person"), thanks to the lucky "fact" that supposedly most of the international calls at the time were via satellite, just doesn't hold water. Thus, the argument that FISA itself didn't intend to protect the international communications of person in the U.S. also doesn't hold water, nor does the plea that we need to "modernize" FISA because the nature of the traffic (undersea fibre and cable, versus satellite radio) has changed.

The remaining clause of the 1978 FISA law covers the interception of "wire communications" to and from persons in the U.S. regardless of the location of the target, if the interception was done in the U.S. Here's § 1801(f)(2) [link above]:

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

This restriction was probably intended to address the fact that such domestically instituted interceptions are likely to pick up mostly domestic traffic (and note that it specifically encompasses such purely domestic calls, as well as those that have one party located internationally). If the intercept is done abroad, it's likely that at least one party to the call is foreign, and § 1801(f)(1) prevents the tapping of specific domestic "targets" without a warrant even if done on foreign soil. Thus, with this provision, any foreign taps should result only (or at the least, mostly) in the acquisition of international calls and the targeting of "non-U.S. persons", even if some domestic parties have their conversations recorded by dint of being the "associate" to the international "target" under investigation.

Perhaps not the best-written law, but the maladministration's strained interpretation of the original FISA really is not plausible. If they want to argue that we ought to be back to tapping all U.S.-to-foreign traffic without warrants or supervision, because someone in the U.S. (but we don't know who) might be talking with <*gasp!*> Terra-ists, let's put that rationale up front and argue that proposition. Let's not pretend that's the way it's always been.
Obviously, lots of concerns about some of the language of the Protect America Act. For the past six months, we worked very closely with the Senate on their bill. That bill responds to a lot of concerns raised by the public and by members. It expands the role of the FISA court even more in the foreign targeting procedures. Not only does it say that these foreign procedures -- that the procedures that we're going to use to target foreign people overseas have to go to the FISA court, but now the documents signed by the Attorney General and DNI that authorized this acquisition activity have to go to the FISA court. And in addition, something called "minimization procedures" are now going to have to be approved by the FISA court. None of this was part of the balance struck in 1978.
A bunch of malarkey. The FISA law used to require warrants (or, more accurately, FISA court orders) for certain types of U.S.-to-foreign taps. Now they don't. The "documents" are not warrant applications (or court orders). They don't specify who is to be tapped, and why they should be tapped. That loosening of the protections of FISA was in fact the impetus for the changes made in the Protect America Act (PAA). And FISA itself had "minimization" provisions; in fact, stonger than those of the PAA.
Let me pause and talk one minute about this word "minimization" that you've heard. Somebody is going to ask me the question: But when you're targeting a foreigner, don't you get a U.S. person sometimes? And the answer is, yes. And the answer is, for many decades we have encountered information to, from, or about a U.S. person when we're doing our overseas foreign intelligence mission. The way we deal with that is a process called "minimization." That's a whole separate briefing that Dana probably does not want me to give, but what that basically means is that we minimize the information concerning the U.S. person. And there's elaborate procedures that are a part of that.
The whole idea of PAA is to look at who in the U.S. is talking with foreigners (at least foreigners in certain countries), and what they're saying. And to do it without showing to the FISA court that the foreigners are in fact "foreign agents" worthy of wiretapping.
That is not anything new. Minimization procedures are mentioned in the FISA -- in the act of 1978. It's something that was recognized would be a part of our intelligence community process.
The minimization of inadvertent intercepts required under the 1978 FISA law required notification of intercepts if nothing showed up (when such would no longer affect actual ongoing operations), and destruction of the material collected. This is no longer the case.
So we are trying to basically restore the balance that was struck in 1978 through this legislation. That is the goal. In fact, what we've restored -- yes, we've restored the balance, but we have a greatly enhanced role for the FISA court, compared to anything that was done in 1978. And certainly the Senate bill expands on that role, in addition to a whole set of oversight procedures and reporting requirements that are in that.
Bovine scat. Covered above.
This brings us to immunity and the issue of immunity. The bills have prospective liability protections, so going forward with our activities. Then there's the issue of what to do about retroactive liability protection. And this involves the program that the President spoke about on December 17, 2005, in his radio address.

The Senate committee report is perhaps the best source of information about this. I would commend all of you to read it. They did an exhaustive analysis of this. The bill passed out of the Senate Intelligence Committee 13 to 2. Of course, you know it passed the Senate with 68 votes.

What do they say in that report? They say it's absolutely vital to our intelligence community mission that we have the cooperation of the private sector. It says that their help is indispensable to the safety of the nation. It also says -- it goes through what they call the unique historical circumstances after the attacks of September 11th, the fact that the private parties were given documentation showing that the President had authorized the program, and showing that the legality of the program was also certified by high-level administration officials. It said that they had a good-faith basis for cooperating with the government. It does not make a judgment about the ongoing discussions about the respective powers of the Congress and the President, and make an ultimate legal determination about that program.
If there was a "legal basis" for the co-operation, then the telecoms don't need immunity. The AG could have certified the "legality", and the telecoms would be off the hook. But the maladministration couldn't even be troubled with that.
What is it from the perspective of the private parties? What are those who are alleged to have assisted with this caught up in, and what is the problem? Well, first, they can't defend themselves. And you say, well, that's our fault because we have asserted state secrets in various lawsuits. And the answer is, we have. And the reason we've done that is because the only way to defend yourself is to go out and describe the exact activities that I am talking about, and that would be a very bad idea if we want to continue to gain vital information, particularly in the counterterrorism arena. Second, they did act in good faith, in reliance on the documents that they received and are discussed in the Senate committee report.
They can defend themselves just fine. They can produce the paper that says that the AG has certified the legality of the programs that they engaged in.

There is no requirement that they "describe the exact activities", and to the extent any such account of the activities is necessary, any filing can be sealed to prevent disclosure of legitimate secrets (as opposed to law-breaking by the maladministration).
With that, I guess I would just leave you with -- kind of in summary, if I had to reduce this and try to make it simple about what we're trying to do, three basic principles that the Director has always acted on: One, no court order to do our foreign intelligence mission. Let us do our foreign intelligence mission targeting foreigners overseas without a court order. That was fine in the Cold War of 1978; today we face, frankly, a more dynamic enemy than we faced in 1978 in terms of their ability to exploit our technology and to change their procedures, compared to the Soviet Union that we faced.
No court orders, eh? "We doan need no steenkin' warrants...." It was not "fine" in 1978, and that was what FISA was all about. And if it was "fine" in 1978, then what's the freakin' push to amend the 1978 law?!?!?

As for the "more dynamic enemy", does he really want us to believe that a bunch of terrorists is a greater threat to the U.S. than was a nuclear-armed Soviet Union that could turn us into a glass parking lot?
Second, a court order for targeting Americans. Something that is overlooked in the Senate bill, for the first time a court order is required if we are targeting an American anyplace in the world. That was not deemed appropriate in 1978; now the Senate has deemed it to be appropriate. That would be a large change. Prior to -- frankly, the way it is today, we go to the Attorney General to authorize those activities abroad targeting an American. The Senate bill would change that.

And finally, we need to have liability protection for the private sector, both prospective and retroactive, and we need the ability to compel their cooperation.
The law itself compels co-operation, ongoing, that is. At least if the request is legal. Which is the only excuse for "liability protection". If the telecoms were knowingly violating the law and snooping on thousands if not millions of Americans, they ought to be held to account. The only thing we encourage by providing retroactive immunity from illegal activities is encouragement to break even the newly amended and loosened law again....

1 Comments:

At 5:43 PM, Blogger Enlightened Layperson said...

Arne,

OK, never mind my question on Balkinization, I guess the post answers it. (There is something to be said for blogwhoring after all). My next questions would be:

(1) To the extend you are able/allowed to answer, was it, in fact, our practice in early FISA days to surveille all US-to-foreign telephone calls without a warrant?

(2) Has the Administration made this argument before? (Because I certainly never heard it when they were arguing how limited the "TSP" was).

(3) Who is this David Kriss guy?

 

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