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Tilting at Windmills

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February 27, 2006
By: Kevin Drum

"UPDATING" FISA....Via TalkLeft, Marty Lederman has examined Arlen Specter's proposed legislation to make the NSA's domestic spying program legal, and he's not very happy. Under Specter's bill, he says, the government would no longer have any requirement to show that the subject of a wiretap is a foreign power or an agent of a foreign power:

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole not even the particular targeted surveillance will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power....

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees that is to say, if there's "probable cause" that you live and breathe here in the U.S. this bill would permit the President to wiretap you [for 90 days], without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda.

In other words, if you've ever had any contact in the past with a foreign government, a foreign-based political organization, or one of their U.S. agents, you can be wiretapped. As Lederman says, that probably includes most of the population of the United States and it certainly includes nearly all reporters and practically everyone with relatives outside the country. And there's more:

The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment....The FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution. That seems untenable, at least on first glance.

And even this feeble oversight applies only to the content of electronic communications. Data mining of metadata (sender, recipient, date/time, etc.) would be completely unrestricted.

Maybe Lederman has misread the bill. Maybe it's not finished and Specter plans to tighten it up. Maybe. But if Lederman's analysis is even close to the truth, it's basically statutory authority for the NSA to wiretap anyone, at any time, for any reason. Do you feel safer yet?

Kevin Drum 12:47 AM Permalink | Trackbacks | Comments (41)

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Comments

Why do I hate America?

Posted by: shortstop on February 27, 2006 at 12:49 AM | PERMALINK

Unacceptable.

All FISA can tell them is that the program is unconstitutional if it implies that any particular right may be violated in a program that is so-called consistent overall with the constitution and specifically 4th amendment.

If the Bush Administration pushes this, we will win at the Supreme Court, but until and if that day comes, we should push back at every opportunity, and I find it hard to believe that FISA would even rule itself consitutional if this passes, as noted.

Posted by: Jimm on February 27, 2006 at 12:54 AM | PERMALINK

I feel much safer, knowing that any of my communications may be intercepted; I'm sure this will help prevent me from committing terrorist acts in the future.

Stop me before I blow myself up again!

Posted by: brooksfoe on February 27, 2006 at 1:00 AM | PERMALINK

Told you, you'd screw yourselves over this one.
Its about public opinion.

What are you going to do? You guys made such a big deal about Specter crossing over to back you guys, that you can't accuse him of being a Bush toady now.

After this and McCain's screwing over of the Senate Supreme court apointee filibuster power by his deal... its living proof that RINO's have some uses.

Posted by: McA on February 27, 2006 at 1:00 AM | PERMALINK

What are you going to do? You guys made such a big deal about Specter crossing over to back you guys, that you can't accuse him of being a Bush toady now.

Sure we can. He's a Republican, not one of ours. We can also blast McCain just fine. You guys are the ones who've always been hurt by the GOP/McCain rift, and it's going to haunt you in '08.

Posted by: brooksfoe on February 27, 2006 at 1:02 AM | PERMALINK

You guys made such a big deal about Specter crossing over to back you guys, that you can't accuse him of being a Bush toady now.

The hell we can't.

Posted by: Stranger on February 27, 2006 at 1:05 AM | PERMALINK

It's worse inasmuch as Specter's proposal is just a face saving device for himself and may be for the Senate.

The administration does not care if the bill is passed or not. It will continue to do what it pleases,

Posted by: lib on February 27, 2006 at 1:06 AM | PERMALINK

lib hits the nail on the head: the worst thing about this bill is that it exists (or, better, is coming into existence). Since the unitary executive theory allows the president to do whatever s/he wants, FISA-2 will be as irrelevant to this administration as is FISA-1. Congress has to attack the underlying problems, viz., that the administration considers congress to be essentially irrelevant. The "argument" what if Hillary had these powers? cuts no ice with these people because they really, really believe that they'll be in power for years and years to come.

Posted by: Brian Boru on February 27, 2006 at 1:11 AM | PERMALINK

Shorter McA: A party that has won two elections in a row is going to win all elections in the future -- so the opposition had better give up and go home.

Posted by: JS on February 27, 2006 at 1:16 AM | PERMALINK

Sounds like a good way to find pot smokers that vote democratic in swing states.

Posted by: tbrosz on February 27, 2006 at 1:22 AM | PERMALINK

Shorter liberals: 'i'm paranoid'

Posted by: jason on February 27, 2006 at 1:36 AM | PERMALINK

Once again McAristotle is caught up in a fantasy role-playing game of Republican versus Terrorist. I wish he was able to think more clearly but he is obviously caught up in the frenzy of planning the demise of liberal thought in America or something. Please God, I can't take it any more. Listening to him lecture to Americans on democracy and freedom while he's on a bender is excruciating -- but that's no secret. It's like being in a prison cell where you are constantly subject to the insane babbling of your cellmate. Fortunately my training in Eastern philosophy I received in Europe is helpful for coping with the headaches arising from his knee-jerk questioning, although listening to his rants and insults is nevertheless torture.

But I sure hope his support of this NSA program doesn't come back to haunt him, given the fact that the CIA has no problem using weak intel to kidnap citizens of other countries and "question" them.

No steamed buns in Uzbekistan, baby!

Posted by: trex on February 27, 2006 at 1:44 AM | PERMALINK

"Oh, This was terrible. Bush ignored the FISA-1 law.

"OK, I'll makes a new FISA-2 law that maybe he won't have to break."

This is the Bush will do it anyway so make it legal defense.

Posted by: Easter Lemming Liberal News on February 27, 2006 at 1:50 AM | PERMALINK

Why is there never a shortage of bedwetters to applaud enthusiastically whatever new outrages against our liberties the executive chooses to deploy?

I'm sure the piss-sodden apologists think they're on the side of Freedom, but liberty itself appears to be an alien concept to them, or at least so abstract that it's outside any practical consideration.

Posted by: bad Jim on February 27, 2006 at 2:41 AM | PERMALINK

That was damn funny, trex.

Posted by: shortstop on February 27, 2006 at 6:50 AM | PERMALINK

What other powers do they have to seize before we label them dictators? What powers did the Supreme Soviet have that they do not claim?

I want America back. The one we learned about in school. The Land of the Free.

Posted by: CN on February 27, 2006 at 7:44 AM | PERMALINK

jimm:
If the Bush Administration pushes this, we will win at the Supreme Court, ...

It appears to me that if this becomes law the veil of secrecy will be so thick that even the Supreme Court will not be able to penetrate it. There will not be any way anyone will know of an individual occurrence. The system is classified along with its objectives.

Only when they come for an individual will the specifics become visable.

And to me, that's the scary aspect.

Posted by: Jim P on February 27, 2006 at 7:51 AM | PERMALINK

The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment...

This is likely driven by the nature of the domestic NSA program, trying to find something they can call a "check & balance" but knowing that making the case for probable cause in specific instances is impossible because all they have is "the computer thinks there's a link between the target & someone else who's already target, but we're not really sure about him even." With "the computer" making thousands of these choices at a time based on very complex algorithms, of course they can't put in a requirement that each choice be supportable.

Posted by: scalefree on February 27, 2006 at 8:39 AM | PERMALINK

What Lederman says is that once FISA is shown probable cause that the program as a whole will intercept communications from at least one person who has communicated with a foreign power, then they can wiretap anyone else, any place, any time. I hope either I'm reading this wrong or he did.

Posted by: anandine on February 27, 2006 at 8:51 AM | PERMALINK

What I'd like to know is, if they are using neural networks to find people to wiretap, what to they use as a training set for the neural network? Certainly there are billions of non-terrorist-related emails and phone calls to make up the negative set, but how many emails and phone calls can they have that they know for sure to be from terrorists? A few thousand? That hardly seems enough.

Posted by: anandine on February 27, 2006 at 8:55 AM | PERMALINK

Does contact with one of their agents include c wholly owned corporations of foreign governments that run American ports?

Posted by: paul on February 27, 2006 at 8:59 AM | PERMALINK

Told you, you'd screw yourselves over this one.

fuck off, troll

Posted by: cleek on February 27, 2006 at 9:18 AM | PERMALINK

What are you going to do? You guys made such a big deal about Specter crossing over to back you guys, that you can't accuse him of being a Bush toady now.

What an odd statement. First, people change. If Specter thinks his proposal is sound, he's an ass. Worse: a collaborator. Second, your statement is beyond creepy. It's like a voice from the dead.

We have here an Administration who goes through these bizarre contortions to talk about the Constitution and the necessity to be literalists and yet they routinely shred the document at whim.
It's so refreshing to know that individual rights aren't individual rights.

As I've said in the past.

RIP
USA
1976-2001.


4#alx 1.1%%am*

Posted by: Jeffrey Davis on February 27, 2006 at 9:45 AM | PERMALINK

This is the Bush will do it anyway so make it legal defense.

We live in terrible times. We are a nation of cattle. The "compromise" on the Dubai ports controversy is that Bush has agreed to follow the law: the 45 day investigation perion will be observed. That's the compromise: Bush will obey the law. Not that there's anything objectionable about the deal that should be reviewed. No. Just that he'll obey the law. And THAT'S THE COMPROMISE!!

Poor George. The things he suffers for us.

We have gone insane. Literally.

It's days like these that make you realize that the old debate about Free Will isn't dead. What is individual will if you can programmed more reliably than a computer?

Posted by: Jeffrey Davis on February 27, 2006 at 10:01 AM | PERMALINK

The salient point missed in all of the noise surrounding this issue goes to the heart of effectiveness. It's a quality verses quantity issue. In this case more is not better.

The real tragedy is that the intelligence community has always been so overwhelmed by the sheer volume of data available to it. So overwhelmed in fact, that all of the data was there for finding the 9-11 hijackers before they struck.

So, how the hell is it, that by increasing the amount of data available to intel by factors of ten or a hundred, we'll all be safer. If they think all this extra data will save our collective asses, then their ship is truly rudderless.

The NSA should be renamed the DNSA or the Destruction of National Security Agency.

Posted by: Aaron in NM on February 27, 2006 at 10:44 AM | PERMALINK

We must destroy the Constitution in order to save it.

Posted by: Osama_Been_Forgotten on February 27, 2006 at 10:48 AM | PERMALINK

Specter wasn't really critical of the program, he only agreed to hold hearings about it. Now we know where "Mr. Constitution" really stands, and he'll be rightfully attacked for this.

And it'll be ruled unconstitutional faster than you can say "Bush is a miserable failure". Not sure if that's the kind of legacy Specter wants to leave behind.

Posted by: Ringo on February 27, 2006 at 10:53 AM | PERMALINK
And it'll be ruled unconstitutional faster than you can say "Bush is a miserable failure".

Win-win for Bush though -- if the rules replacing FISA are trashed as unconstitutional, we're back to the no-statutory-framework, no-remedy, pre-FISA state on executive surveillance for notionally national security reasons.

Posted by: cmdicely on February 27, 2006 at 11:02 AM | PERMALINK

Bob Herbert in today's NYT:

"Why We Fight," a thoughtful, first-rate movie directed by Eugene Jarecki... The central figure in the film is... Dwight Eisenhower...

Ike warned us, but we didn't listen. That's the theme the movie explores.

Eisenhower delivered his farewell address to a national television and radio audience in January 1961. "This conjunction of an immense military establishment and a large arms industry is new in the American experience," he said. He recognized that this development was essential to the defense of the nation. But he warned that "we must not fail to comprehend its grave implications."

"The potential for the disastrous rise of misplaced power exists and will persist," he said. "We must never let the weight of this combination endanger our liberties or democratic processes." It was as if this president, who understood war as well or better than any American who ever lived, were somehow able to peer into the future and see the tail of the military-industrial complex wagging the dog of American life, with inevitably disastrous consequences.


Posted by: obscure on February 27, 2006 at 11:44 AM | PERMALINK

Kid: I'll draw a line in the sand and dare you to cross it.

Bush: (crosses the FISA line)

Kid: Well, okay, so you can do that. I'll draw another FISA-2 line and double dare you to cross it.

Bush: smirking, happily jumps over the line and pounds the shit out of the kid

What is LAW if you have no Values to embody?
Just what Values does Specter bring to FISA-2?

Specter: Let Bush do what he wants. He's a headache to restrain, so don't bother.

Posted by: MarkH on February 27, 2006 at 12:03 PM | PERMALINK

In other words, if you've ever had any contact in the past with a foreign government, a foreign-based political organization, or one of their U.S. agents, you can be wiretapped.

I donated money to Doctors Without Borders (aka Medecins sans frontieres) last year after the tsunami. Nice to know I can be wiretapped for making a donation that the U.S. government encouraged me to make.

Posted by: Mnemosyne on February 27, 2006 at 1:52 PM | PERMALINK

Why do I hate America? by shortstop-

Don' let the door hit you in the ass..

RIP
USA
1976-2001. by jeffrey--you can follow..

Posted by: charlie w on February 27, 2006 at 4:24 PM | PERMALINK

Scalefree:"the computer thinks there's a link between the target & someone else who's already target, but we're not really sure about him even." With "the computer" making thousands of these choices at a time based on very complex algorithms, of course they can't put in a requirement that each choice be supportable.

of course, the "computer" really means the guy/gals who came up with the algorithms in the first place. would the FISA court get to interview them to find out how the decided what connections they thought were important, and what words/phrases they decided were indicative of those connectiongs? and could that be explained in a way that a lawyer without a PhD in compsci could understand?
as my dad always says garbage in/ garbage out which i suppose is the main problem. if these things are as bad as the "here are some suggestions for you" from Amazon.com, you'd have better luck throwing darts at pages from the NYC and LA phone books.

Posted by: e1 on February 27, 2006 at 4:33 PM | PERMALINK

Charlie W.,
You don't know the first thing about America, do you?

You can watch it die and not feel a damn thing.

And I bet you think your a patriot.

What was it that Patrick Henry said? Oh yeah, "Give me liberty or give me death!"

Today, Charlie W. says, "Take my liberty, I'm scared to death!"

Posted by: Dr. Morpheus on February 27, 2006 at 4:37 PM | PERMALINK

Scalefree:of course they can't put in a requirement that each choice be supportable.
{{this is what i get for copying too much the first time}} they should be able to give specific info for the 90 day surveillance of any particular person. [how i read KDs post was once the program itself was deemed to provide probable cause, then all surveillance was cleared]. if you're tapping my phone and reading my email for 3 months it had better be for more substantive reasons that b/c some computer kicked my voice/address out of a queue based on some spit second decision tree.

JefferyDavis:We have here an Administration who goes through these bizarre contortions to talk about the Constitution and the necessity to be literalists and yet they routinely shred the document at whim. yeah i just laugh every time i hear Antonin Scalia's name now. sometimes, just sometimes, i wonder if they're giving him the right meds.

Posted by: e1 on February 27, 2006 at 4:46 PM | PERMALINK

For what it's worth, Kevin, I didn't read the bill the way Lederman did. I read it as requiring that one person in every wiretapped conversation needs to have evidence against him that he is a foreign agent or in communication with same.

It's an important difference, no? Anyway, we already knew that a Republican-controlled congress was never going to do anything to censure GWB or make him look bad (tell the truth). The best we could possibly hope for is something that lets him off the hook, but curtails the behavior.

Until a Democratic Congress arrives.

If you don't like it, then push for hearings and no law to be passed at all. But I don't see a massive liberal-wide campaign for that. I don't see you talking about NSA every day. I don't see it in the times. I don't see Hilary Clinton making speeches on it.

If you out there don't like this law, think it's too soft on Bush: blame yourselves. You have failed to make yourself heard in any meaningful way to stop it. Me, I feel lucky we're not getting Mike DeWine's bill to exempt the whole damn thing.

Posted by: glasnost on February 27, 2006 at 8:39 PM | PERMALINK

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Posted by: 6576676 on February 28, 2006 at 11:48 AM | PERMALINK

For what it's worth, Kevin, I didn't read the bill the way Lederman did. I read it as requiring that one person in every wiretapped conversation needs to have evidence against him that he is a foreign agent or in communication with same.

It's an important difference, no?

It's not just an important difference, I'd say it's critical to the whole debate. It appears that the way the NSA program works is to identify a target and perform link analysis to map the social network surrounding them, then use this extended target list for automated keyword-based surveillance. All you have to do to become a target is know a guy who knows a guy, or more accurately call a guy who calls a guy who got selected with the still-secret 48 rules they use for initial target selection. That initial target is just a starting point, not necessarily the endpoint of every conversation they listen to.

This is why the Administration's doing such a dance with their words, because they know there's no way in hell they can even retroactively justify the vast majority of the calls they monitor. When you're looking for a needle in a haystack, the best you can ever do is try to put limits on the number of innocent stalks you look at along the way.

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