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Tilting at Windmills

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August 6, 2007
By: Kevin Drum

FIGURING OUT FISA....PART 2....James Risen writes in the New York Times today about the recent changes to FISA:

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

....For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.'s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

"It's foreign, that's the point," Mr. Fratto said. "What you want to make sure is that you are getting the foreign target."

....The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.

If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners. All they have to do is claim that the real target is the foreigner and that a "significant purpose" of the eavesdropping is related to intelligence gathering. Not terrorism, mind you, just intelligence generically. What's more, they don't even have to go to the minimal trouble of making that claim to a court. They can just make it and approve it themselves.

So that's that. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight. But don't worry. I'm sure they'll never misuse this power. They never have before, have they?

Kevin Drum 12:38 AM Permalink | Trackbacks | Comments (61)

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AS if we had to read the Times to know this. It's a joke, really. And it's disgusting how duplicitous many of our journalistic institutions were in this falicious "debate" process. Well, at least the WH is being honest now.

Posted by: KC on August 6, 2007 at 12:49 AM | PERMALINK

Tony Fratto, a White House spokesman, said... that the new law... potentially (allows) the government to listen to Americans calling overseas. But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

ie. we have the power but trust us not to abuse it... I wonder increasingly why you guys ever had that Revolution of yours.

Posted by: snicker-snack on August 6, 2007 at 12:50 AM | PERMALINK

All the best thought-out legislation is done at the last minute before quiting town. Thank you, Dems in Congress in general and Sen. Dianne Feinstein in particular, for standing firm for your obligation to your constituents.

Posted by: Jeff S. on August 6, 2007 at 12:54 AM | PERMALINK

The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight.

Thanks for the good news Kevin. I know I can sleep a little safer tonight knowing the President now has the power to do everything possible to prevent another terrorist attack like 9/11.

Posted by: Al on August 6, 2007 at 12:56 AM | PERMALINK

Feinstein needs a primary opponent. Look, maybe FISA needed some changes, but what happened here is absolutely appalling. She has no excuse. How can she or any Dem legitimately criticize Gonzales when they decided to give him the power to authorize wiretaps without warrants? Seems like he must be doing a decent job if they're going to hand him that kind of power, right?

Posted by: KC on August 6, 2007 at 12:58 AM | PERMALINK

During the very time Congress was debating codifying President Bush's lawbreaking by revising FISA, Alberto Gonzales' DOJ was raiding the home of a former Justice official to identify the person who first brought the illicit program to light.

For the disturbing details of selective retribution by the White House, see:
"Payback Time: FBI Raids Home of Suspected NSA Leaker."

Posted by: Furious on August 6, 2007 at 1:09 AM | PERMALINK

Tip o' the iceberg. I think we can assume Big Brother is monitoring all communications.

http://www.wired.com/news/technology/0,70914-0.html

"The Ultimate Net Monitoring Tool
By Robert Poe| 08:00 AM May, 17, 2006

The equipment that technician Mark Klein learned was installed in the National Security Agency's "secret room" inside AT&T's San Francisco switching office isn't some sinister Big Brother box designed solely to help governments eavesdrop on citizens' internet communications."

Posted by: Luther on August 6, 2007 at 1:10 AM | PERMALINK

When will the self-described moderates like Kevin stop being oh so snarky and start foaming at the mouth on noting such egregious violations of the democratic principles of our country?

Posted by: gregor on August 6, 2007 at 1:16 AM | PERMALINK

Luther >"...we can assume Big Brother is monitoring all communications..."

That would be a very smart assumption. Is monitoring now and has been for several decades. The only thing that has changed is the capability of the technology which has expanded the net used and its reach.

Yes, really.

"...Ambition must be made to counteract ambition..." - Federalist No. 51

Posted by: daCascadian on August 6, 2007 at 1:33 AM | PERMALINK

20 years from now, when the next J. Edgar Hoover is abusing the public trust, Democrats will be blamed (rightly) for allowing this law to be passed.

So this is how liberty dies, to thunderous applause (copyright George Lucas) and a complicit Congress...

And you know the most amazing thing...Republicans wouldn't even pass this nonsense when they controlled Congress and they could have easily walked over Democrats last year..but Democrats allowed it to go through?

excuse my language...but WTF!!!!???!!!!

I am sick to my stomach...

Democrats are absolutely useless...

Posted by: justmy2 on August 6, 2007 at 1:48 AM | PERMALINK

snicker-snack: I wonder increasingly why you guys ever had that Revolution of yours.

I am starting to wonder myself...

Posted by: justmy2 on August 6, 2007 at 1:50 AM | PERMALINK

Is it possible that the reason for the rush (and the pressure, and the scare tactics) was this: That a lawsuit resulting from Bush's illegal secret surveillance program is about to get decided, and not in Bush's favor, and ordered shut down?

Posted by: Maeven on August 6, 2007 at 2:05 AM | PERMALINK

What is so hard about saying "internet?"

These aren't phone lines, they are fiber optic lines that carry phone & internet data.

i.e., We know about the sex toy you bought, and we'll destroy your dignity if you oppose us.

Posted by: absent observer on August 6, 2007 at 2:05 AM | PERMALINK

snicker-snack >"...I wonder increasingly why you guys ever had that Revolution of yours."

One group of elitists (with a very powerful vision of what could be) wanted to be out from under the thumb of another group of elitists (that had a different vision of how things should work)

And of course there were all those other elitists on the sidelines selling arms, ammunition etc to either side making themselves fortunes doing so

very simple when you cut out the propaganda

"When you give food to the poor, they call you a saint. When you ask why the poor have no food, they call you a communist. " - Archbishop Helder Camara

Posted by: daCascadian on August 6, 2007 at 2:10 AM | PERMALINK

Let me get this straight - the Democrats actually trust the Attorney General Alberto Gonzales - the guy who has repeatedly perjured himself in congress regarding illegal wiretapping and one of the most conspicuous, blatant abuses of power by that office in memory (the politically motivating firing of US attorneys) - they trust Gonzales not to abuse these expanded surveillance powers? They trust him enough that they willingly removed any direct oversight? Are you kidding me?

Democrats are worse than useless - they are willing, complicit enablers of Republican efforts to dismantle the Bill of Rights. And for what, their fear of being falsely accused by Republicans of not doing enough to prevent terrorist attacks? This from the party that failed to enact the 9/11 commission recommendations?

I don't know how anyone of good conscience can be registered to either the Democrats or Republicans anymore. It's really harder and harder to know which party one should be more disgusted with - the Republicans for their corruption and abuses of power or the Democrats for betraying their mandate from the electorate and failing to hold this administration accountable for anything.

You can pretty much just kiss our constitution goodbye, what little of it actually remains now. This isn't just one man or even one administration abusing power and violating the constitution - it's both political parties willingly giving their imprimatur to it. There's no one else to turn to.

It's hard to imagine the Democrats could be so consistently incompetent and ineffectual, and yet just when you think they couldn't be any more worthless... Perhaps the Democrats believe they'll fare better in the next election if they avoid major battles over complicated issues like this that your average citizen just isn't following in any detail. But we're fast approaching a point where there simply isn't going to be enough left of the constitution to matter who is in office anymore. Powers like these aren't easily rolled back.

It's like that Simpson's episode where they discover both Clinton and Dole are actually evil aliens. Everyone is horrified, but the aliens Kang and Kodos just laugh and say that no matter who you vote for, earth is doomed. Someone steps out from the crowd and says that's not true, we can vote for a third party candidate! Kang and Kodos reply "go ahead, THROW AWAY YOUR VOTE!" and start laughing demoniacally. The people elect Kang. Cut to a scene where earth is enslaved and everyone is being worked to death in a mine. Homer says "don't blame me, I voted for Kodos".

For those of you who want to send a message to the Democrats but can't get up the nerve to actually vote for a third party candidate come election time, here's an idea: register as an independent. But don't take my word for it:

GEORGE WASHINGTON ON POLITICAL PARTIES: Of the baneful effects of the spirit of party generally.... It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms; kindles the animosity of one part against another; foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passion. Thus the policy and the will of one country are subjected to the policy and will of another.

We need a legitimate third party - and the first step is to marginalize the two parties that both share responsibility for bringing this country to the horrible place we're at now.

Posted by: Augustus on August 6, 2007 at 2:57 AM | PERMALINK

If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners. All they have to do is claim that the real target is the foreigner and that a "significant purpose" of the eavesdropping is related to intelligence gathering.

Um...Yeah...that's what we are so pissed off about, why Democratic Senators and representatives are being burned in effigy and denounced, and recurring contributions canceled.

Posted by: Blue Girl, Red State (aka G.C.) on August 6, 2007 at 3:31 AM | PERMALINK

....For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.'s target is the person in London.

Wasn`t that always the case, with the caveat the information on the US side should be "minimized" (Names removed)? I seem to recall noone making a fuss about the intercepts for which John Bolton requested the removed US names.

This was my impression when I read USSID18 (scanned copy) and James Bamfords book body of secrets.

If this already was the case then this new language might sound like it reasonably introduces something unforeseen while it actually changing the detailed requirements (like minimization) in an less than reasonable way.


The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored.
Now that is a big change. It also sounds like what I imagine happened when the administration started to use FISA in an quote "innovative" way....

Posted by: rt on August 6, 2007 at 3:39 AM | PERMALINK

That's what we are so pissed off about, why Democratic Senators and representatives are being burned in effigy and denounced, and recurring contributions canceled.

There's plenty of blame to go around.

No matter their party affiliation, they're politicians. It's their nature. They require constant surveillance. ;)

The blogosphere needs to step up and take some responsibility for what happened, too. This was predictable. It's not as if the tactics used this weekend haven't been SOP for Bush-Cheney-Rove these last six years. Anyone paying the least bit of attention to the last six years could have called this play in their sleep.

If the Netroots want to play a significant role in U.S. politics, scheduling a convention on the last weekend that Congress is in session is not the way to be taken seriously. There was little blogging going on across the blogosphere these last few days of Congress because so many were off conventioneering.

We all got played, and by people (the DLC) who are only too happy to lose us, the base.

Posted by: Maeven on August 6, 2007 at 3:52 AM | PERMALINK

Kevin, here`s the beutiful thing about this law. I am commenting from Japan. Now everyone who has ever visited this website has international contact.

It`s a very short hop, skip, or jump from phone records to internet records.

Posted by: profbacon on August 6, 2007 at 3:58 AM | PERMALINK

As an EU citizen I shall of course be writing to my MEP, Telco, MP etc. demanding that they have put in place security measures to make sure no phone or data communications of mine can enter the US unless deliberately aimed at the US. Maybe that will put pressure on US business which seems the only way to apply any pressure on US politicians.

Posted by: JJackson on August 6, 2007 at 4:26 AM | PERMALINK

I just spoke tonight with my sister, who has lived in southern France for almost 20 years. Because we were on an international call, she didn't want to talk about George W. Bush because she now feared that I might get into some sort of trouble. I initially thought she was joking, but she was quite serious.

Is THIS how we're going to live from now on -- in fear of what might happen to us if we say or do the "wrong" thing, or associate with the "wrong" people?

Fuck that shit.

We need to remember, now more than ever, the words of famed Spanish orator Dolores Urribe, who during the Spanish Civil War sought to rally her fellow Spaniards to resist Gen. Franco and the fascists:

"Mejore para morir en pies del yoyur, que vivir en sus rodillas." Better to die on your feet, than to live on your knees.

Posted by: Donald from Hawaii on August 6, 2007 at 6:58 AM | PERMALINK


I wonder how long it will take before the Repukes and the turncoat Dems realize the Bushites are listening to them, too, to determine loyalty?

Gotta keep these people in line. Can't have too many "terrorists" hanging out in the halls of Congress.

h

Posted by: hancock on August 6, 2007 at 7:40 AM | PERMALINK

Al writes: "I know I can sleep a little safer tonight knowing the President now has the power to do everything possible to prevent another terrorist attack like 9/11."

Al (BTW, weren't you banned?) I wonder how safely you'll sleep when President Hillary Clinton has the same power to "monitor all your calls overseas with only the most minimal oversight."

If that thought makes you even vaguely uncomfortable then you should recognise that the potential abuses/excesses of a unitary executive cut both ways. Either this expansion of warrantless wiretapping should be extended to EVERY administration, no matter how partisan or extreme or divergent from your particular views, or it should be extended to none.

I'm frankly always mystified when Republicans - who vociferously claim to oppose Big Government -are so gullibly, blithely supportive of measures that expand the Government's powers, size, scale & intrusion into their own lives. Perhaps their faith in the tattered Rovian myth of a permanent Republican majority blinds them to the fact that the powers they so willingly extend to their beloved, authoritarian Daddy, will likely soon be wielded by their despised, equally partisan, Mommy.

Posted by: DanJoaquinOz on August 6, 2007 at 7:58 AM | PERMALINK

Oh please! The government is not limited in any way as far as what it can do to you. You have no rights, at least no rights that can't be abridged if Bush deems it necessary. Thrown in jail without charges, lawyer or visitors? Check. Sent to another country to be tortured? Check. Barred from flying despite any connection to terrorism? Check. Library records secretly seized without a warrant? Check. Prediction: Every member of Congress and their staff and families and business associates has every phone call incoming and outgoing monitored with reports given to Bush. Same goes for their banking and medical records. There is no 4th Amendment. Posting about the degree to which it still exists is an exercise in futility.

Posted by: steve duncan on August 6, 2007 at 7:59 AM | PERMALINK

Don't worry Kevin, Nancy Pelosi has promised to fix things. Of course, the whistleblower who told the American people about the unconstitutional aspects of the program will probably do hard time, but what the heck. Notice that nobody in the gang of eight was willing to do anything to protect the Constitution.

Posted by: corpus juris on August 6, 2007 at 8:06 AM | PERMALINK

I have always wondered why on earth people who claim to believe that the government couldn't run a phone booth without misusing its power and screwing everything up are prepared to concede the bloody Bill of Rights itself to the discretion of that selfsame government... I'm sure there is a good explanation.

Posted by: llewellyn on August 6, 2007 at 8:26 AM | PERMALINK

>I wonder increasingly why you guys ever had that Revolution of yours.

The thing is the Revolution was supposed to be about "The People vs. The Government", not "Us Particular People vs.".

The ability of Americans, a country of immigrants, to now think it's OK for our government to go outside the Constitution as long as the person involved is a "foreigner", makes me sick.

I always think the Constitution is a restraint on how our government conducts itself, period.

Seriously, would anybody sane try to train a pit-bull to just attack people that aren't one of us? All the pit bull figures out is that it is not entirely forbidden to attack people, and whether it's that scary neighbor or Aunt Martha, well who knows?

Where the fuck are the libertarians, huh?

Posted by: doesn't matter on August 6, 2007 at 8:34 AM | PERMALINK

Time to rehire Doug Feith in military intelligence. Give him a RNC email address for fun.

My guess is that the dems figure the Bush administration might blow something up if they didn't get their way.

Posted by: B on August 6, 2007 at 8:35 AM | PERMALINK

... Not terrorism, mind you, just intelligence generically. ...

Kevin: Exactly! Merely talking to or corresponding with a foreigner -- ANY foreigner -- may now be arbitarily construed as "suspicious" activity at the drop of a hat!

Of course, as we all surely realize, even THAT's very likely just the tip of the iceberg for this "give us an inch and we'll take a mile" junta! And woe unto those who might just happen to "dis" the Fuehrer's vision for Iraq "stabilty" or the government of Lebanon in passing conversation -- then it's Confiscation Time!.

Of course, that FISA revision DOES have its six-month "sunset provision". As I recall, Hitler's Enabling Act had a similar expiration clause, as did the "USA PATRIOT" Act once upon a time. But "strangely", the sun never DID set on either of the latter two, and probably never will on THIS monstrosity of a civil liberties give-away either. And those pitiful Democratic pretenses of "reworking" this properly right after the recess have NO credibility whatsoever since, as they themselves know, they'd never be able to muster the votes necessary to surmount our Fuehrer's inevitable veto.

"We, the People" have been SCREWED AGAIN, and with the significant complicity of the supposed "opposition party" -- nearly a full THIRD of the Senate Democrats APPROVED this Big Brother "fishing expedition", in flagrant violation of their Constitutional oaths.

The formerly "creeping" Fascism within this nation is rapidly approaching a gallop.

Posted by: Poilu on August 6, 2007 at 8:35 AM | PERMALINK

its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists

You don't say.

The Democrats' caving on this issue was shameful. I'm particulerly disappointed with my own Democratic Senator, Evan Bayh -- oh, well, not really, as I never expected this DLC robot not to cave, just as I didn't really expect Dick Lugar to stand up for principle either -- and Congresswoman Stephanie Herseth, who was elected in part due to netroots activism.

Bayh just forfeited my vote, and I plan to let him know in no uncertain terms.

Posted by: Gregory on August 6, 2007 at 8:39 AM | PERMALINK

Look, this is Cheney's ultimate payback for Watergate. Next time the Republicans wiretap the Democrats, it won't be illegal.

Posted by: Gregory on August 6, 2007 at 8:43 AM | PERMALINK

I wonder how safely you'll sleep when President Hillary Clinton has the same power to "monitor all your calls overseas with only the most minimal oversight."

Yeah. Be nice to think so. But it's not his demographic (even if he is a parody). He probably doesn't have anyone overseas to call (well... probably doesn't have anyone to call, truth be told). Of Americans with passports, they went for Kerry over Bush almost two to one. More likely to be a Democrat doing a strange thing like talking to a foreigner.

Posted by: snicker-snack on August 6, 2007 at 8:43 AM | PERMALINK

Look, this is Cheney's ultimate payback for Watergate. Next time the Republicans wiretap the Democrats, it won't be illegal.

Posted by: Gregory on August 6, 2007 at 8:43 AM
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Gregory, they're already wiretapping the Democrats. They're also wiretapping Republicans. Thinking otherwise means you're in denial.

Posted by: steve duncan on August 6, 2007 at 8:55 AM | PERMALINK

Re: Democrats are 'worthless', 'worse than useless', etc.

In all fairness, MOST of the Democrats in Congress did NOT accommodate this Orewellian farce. The Senate GOP, on the other hand, voted in total LOCK-STEP for this atrocity. So I think the above sweeping generalizations are highly unwarranted.

However, as a PARTY, the Democrats have clearly not presented anything remotely resembling a "united front" in staunch opposition to this incipient Totalitarianism. For that, I assuredly fault them as an organization. And I certainly consider all individuals who voted FOR this noxious travesty of liberty reprehensible in the extreme.

Sadly, there are obviously Fascists and quislings in BOTH the dominant parties of the US. The system is clearly broken.

Posted by: Poilu on August 6, 2007 at 9:03 AM | PERMALINK

If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners

The game was given up when people didn't make a moral/ethical argument that eavesdropping was bad, period. Because pretty much everybody agrees (Including myself, by the way. I just think there needs to be a strict firewall on what's done with that information) that eavesdropping on foreigners is a good thing, then obviously eavesdropping on people who might be talking to foreigners is a good thing.

Is it a violation of the constitution?

Who knows, with this court.

But this is a classic situation where the line "We've already established what you are, now we're only discussing price" comes into effect loud and clear.

Posted by: Karmakin on August 6, 2007 at 9:04 AM | PERMALINK

Simply assume everything you say on the phone or write on the internet is being recorded.

Now what to do about it?

You can live brave or cower. The brave will be the first taken to the camps. In the cowards will suffer longer.

Posted by: corpus juris on August 6, 2007 at 9:11 AM | PERMALINK

Gregory, they're already wiretapping the Democrats.

I didn't mean to imply any confidence that they weren't. It would certainly explain why Bush is now demanding retroactive immunity for violating the FISA law.

I wish I could imply some confidence the Democrats wouldn't hand that to him as well.

Posted by: Gregory on August 6, 2007 at 9:16 AM | PERMALINK

minimal oversight?

Try ZERO oversight.

Posted by: lina on August 6, 2007 at 9:24 AM | PERMALINK

"Mejore para morir en pies del yoyur, que vivir en sus rodillas." Better to die on your feet, than to live on your knees.

Donald: FABULOUS quote! Thanks so much for sharing it.

Obviously, Patrick Henry thought quite similarly:

... Gentlemen may cry, Peace, Peace-- but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

[Frankly, I could care less whether Mr. Henry was among the worst "elitists" who ever lived. For, his WORDS resonate profoundly for the average American of THIS day.]

Viva la revolucion!

Posted by: Poilu on August 6, 2007 at 9:29 AM | PERMALINK

I don't recognize the US anymore.

Posted by: Poéthique on August 6, 2007 at 9:34 AM | PERMALINK

This FISA bill guarantees that not a single GOPer in the Admin will be impeached or forced to resign. EVERYTHING they have done illegally has been validated. The original illegal domestic spying that Bush/Cheney started even before 9/11 has now been rendered "legal" (though it is still unconstitutional, though no one can ever have "standing" to fight it). It is impossible now to nail anyone on that illegal spying in the past when they have since decided that such illegal spying is a "good idea"! (for a police state).

The Dems are irrelevant and superfluous. I implore any and all Dems or Dem-leaning Indies here to join in a money blockade. NO MORE MONEY for the Dems, at all, in response to this atrocity. They don't hear phonecalls, emails, letters, etc, but they DO hear money. It is all they understand or care about. NO MORE MONEY FOR DEMS until and unless they TOTALLY undo/reverse this atrocity and stick strict limits on any and all NSA programs - force them to work within the confines of the Bill of Rights.

Posted by: Praedor Atrebates on August 6, 2007 at 10:02 AM | PERMALINK

By the way, it's worse than Kevin reports... the "target" of the investigation doesn't even actually have to be overseas, Bush and his cronies just have to "reasonably believe" that he or she is. Of course, what counts as a reasonable belief in this administration bears little resemblance to what most of us would recognize.

Posted by: Glenn on August 6, 2007 at 10:26 AM | PERMALINK
If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners.

"Appears to be confirming that it believes"? This is hardly one of those murky areas of the law that is inscrutable to all but a high priesthood of experts (actually, except when it comes to the effect of different laws on each other, there are a lot fewer of those than the media's "finding dueling opinions of experts is better than checking facts" approach would suggest.) The new law is readily available: it is S. 1927.

Fact: the new law redefines "electronic surveillance" so that, so long as the target is "reasonably believed" to be outside of the US, any surveillance directed at them (no matter who else it sweeps up) is not "electronic surveillance" under the terms of FISA, and is subject to virtually none of the controls that previously applied to "electronic surveillance" under FISA, including,particularly, the warrant requirement where one party to the communication was either a US person or within the US.

Fact: the new law establishes a new warrantless procedure for surveillance directed at persons "reasonably believed" to be outside of the US that allows the Director of National Intelligence and Attorney-General to authorize such such surveillance for up to one year, and requires the certification required by the DNI and AG for such surveillance to be completed after the fact.

This bill is the kind of unchecked expansion of executive power that, along with the Iraq War, the American people sent Democrats to Congress in 2006 to stop. WTF is wrong with the Democrats in Congress? Why are they determined to be indistinguishable from Republicans? It doesn't make sense on policy grounds, it doesn't make sense on any kind of principle, it doesn't even make sense on craven political grounds. It is stupidly suicidal.


Posted by: cmdicely on August 6, 2007 at 10:52 AM | PERMALINK
By the way, it's worse than Kevin reports... the "target" of the investigation doesn't even actually have to be overseas, Bush and his cronies just have to "reasonably believe" that he or she is.

Its even worse than that, since there is an immunization provision that states that, if an order is issued, even if it is illegal, no one can be held accountable for it in any court. The most that can happen, if the surveillance is challenged, is that the order can be tossed out and no further surveillance done (of course, a new order covering the same target can be issued, and no one can be held accountable if that one is illegal, either.)

And its even worse than that in practice, since the only person who will no about an order to challenge it, and the only person given standing in the law to challenge an order, is the "custodian" of communication (usually, a telecom) who receives the order, and they are paid for their costs in complying with the order. So, they have the choice of complying for free and with absolute immunity from any liability, or they can spend time and money challenging the order. Which is a for-profit firm going to do?

Posted by: cmdicely on August 6, 2007 at 10:57 AM | PERMALINK

You know what question I'd like to see asked of our supposedly Democratic Presidential candidates?

If elected President, what steps will you take to investigate and expose the abuses of the Bush WH with regard to issues of illegal surveillance, the politicization of our governmental agencies, and other forms of corruption in the federal government?

Given the breadth of those abuses, how can such an investigation not be obligatory?

Seriously, if the idiots in the Bush WH can make a big fucking deal out of supposedly missing W keys, why shouldn't the next President be allowed to get to the bottom of genuinely serious abuse and corruption? Given that Bush has decided simply to stonewall in every possible way and run out the clock, why should he be allowed to get away with the criminal behavior of his people, especially since he's already used his pardoning powers and may well use them again to make the coverup complete?

Posted by: frankly0 on August 6, 2007 at 10:59 AM | PERMALINK

. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight.

No, they are allowed to monitor all communications traffic in the US so long as the objective of that monitoring is to capture some communications going to people that are believed to be outside of the US.

While there is a requirement for minimization procedures aimed at expunging and avoiding release of information relating to US persons, there is no requirement that the scope of the initial capture of information is narrowly tailored to the stated target, and negative incentive to challenge an overbroad order for anyone in a position to do so.

Posted by: cmdicely on August 6, 2007 at 11:05 AM | PERMALINK

anyone who ever had an expectation of privacy for an overseas phone call..or an email...is an idiot.

Posted by: Nathan on August 6, 2007 at 11:05 AM | PERMALINK

This is Operation TIPS all over again. Most international communications go through a few buildings: One Wilshire, 60 Hudson Street. It's easy to archive them all and search for whichever terms one wants, like "Bush" and "jerk" within 5 words.

Posted by: Mike on August 6, 2007 at 11:16 AM | PERMALINK

Mike:
duly noted
NSA

Posted by: apeman on August 6, 2007 at 11:20 AM | PERMALINK

Irony alert: serial liar Nathan -- alleged lawyer who demonstrates repeatedly here that his feeble argumentation skills are no match for his ability to parrot GOP talking points -- uses the term "idiot" for someone -- anyone! -- else.

It isn't surprising, though, to see Nathan's dismissal of American citizens' expectation of privacy -- it's just shameful.

Posted by: Gregory on August 6, 2007 at 11:23 AM | PERMALINK

I think Lewis Carroll said it best:

`It seems a shame,' the Walrus said,
`To play them such a trick,
After we've brought them out so far,
And made them trot so quick!'
The Carpenter said nothing but
`The butter's spread too thick!'

`I weep for you,' the Walrus said:
`I deeply sympathize.'
With sobs and tears he sorted out
Those of the largest size,
Holding his pocket-handkerchief
Before his streaming eyes.

Posted by: Zit on August 6, 2007 at 11:30 AM | PERMALINK

anyone who ever had an expectation of privacy for an overseas phone call..or an email...is an idiot

Really? Why is that? And what about those who had an expectation that the fundamental right to habeas corpus would not be denied to anyone? Or expectations of protection against unreasonable search and seizure? Of free speech vs. free speech "zones"? Or that we would above by the Geneva conventions and international law?

Are we all just chumps? Should we have known better than to think that Republicans would abide by the "rule of law" after paying so much lip service to it during the 2000 election?

Your stirring defense of civil liberties and constitutional protections is underwhelming, much less your conspicuous inability to denounce egregious abuses of Executive power.

Posted by: trex on August 6, 2007 at 11:55 AM | PERMALINK

There is nothing to figure out. Democrats have petraeus.

The beauty of it is that we still have to vote for their presidential candidate.

Posted by: Brojo on August 6, 2007 at 12:05 PM | PERMALINK

And once you call overseas the goverment can keep track of every call you make inside or outside the country FOREVER.

Posted by: john john on August 6, 2007 at 12:07 PM | PERMALINK

That a Democratic congress would pass this type of legislation really makes me want to puke....even more than the roll-over in March on funding the troops.

I bet there are a lot of people out there wondering why they bothered to vote Democratic in 2006.

Posted by: mfw13 on August 6, 2007 at 12:13 PM | PERMALINK

more importantly; (perhaps MOST importantly) - they may have unrestricted "pen register" or metadata access, no matter who is on either end of the call - and that's all going into a database for data mining.

The supposed justification for this, is so they can determine whether one end of the conversation is foreign. But even if both ends are domestic, they get to keep the metadata now.

The one GOOD provision of the Patriot Act was to finally cover electronic communications under pen register laws to protect our rights (prior to that, it was a gray area) - and now, even that small positive was undone.

The next Democratic President must undo this abomination, must undo USA PATRIOT, must undo CALEA, must undo the fascist DMCA - otherwise - what is the point of electing a Democrat? No functional difference from BushCo - just liberal-friendly rhetoric. No liberal-friendly ACTION. America does not need another Clinton.

Posted by: osama_been_forgotten on August 6, 2007 at 12:17 PM | PERMALINK

The Congress has been had again--when will they actually stand up and uphold the Bill of Rights? Or is that just a "quaint" document that can be ignored?

Posted by: parrot on August 6, 2007 at 1:13 PM | PERMALINK

anyone who ever had an expectation of privacy for an overseas phone call..or an email...is an idiot

This shit is no doubt why you had to leave that law firm in a hurry just after you got there, and then frantically search for a new "career" outside law after such a short time in it.

Beyond that, man, I can't even comment on this topic this morning, so outraged and discouraged am I at the perfidy of these Dems. It's just beyond belief.

Posted by: shortstop on August 6, 2007 at 1:22 PM | PERMALINK

I get the strangest feeling that some of the individuals most vigorously trashing the ENTIRETY of the Democratic Party for this sordid outcome might actually be REPUBLICANS. I don't intend in any way to make "excuses" for those Democrats who betrayed the American people in this instance. In my mind, their compliance was tantamount to treason. But they were clearly in the MINORITY of their own Party.

Earth to Wing-nuts: It's your OWN jack-booted faction that marched in TOTAL lockstep on this issue, at least in the Senate. Not a SINGLE GOP Senator voted against this particular expansion of "big government" -- a result which leads me to believe that virtually the ENTIRE Republican Party apparatus has been thoroughly "Nazified". (A manifestation of any traditionally "Conservative" position that maneuver definitely WASN'T!)

Nevertheless, shame on those Democrats who DID bow to yet another of the "Fuehrer's" petulant demands or who were perhaps willingly complicit in the scam. They obviously aided in selling the American people completely down the river.

But to HELL with the unified sycophants of the Republican Party, who serve only themselves!

Posted by: Poilu on August 6, 2007 at 1:48 PM | PERMALINK

The bright side to this insanity is that at least people may *finally* start encrypting their communications. I've been bitching about this for years, since PGP came out in the early 90s.

Posted by: Disputo on August 6, 2007 at 3:22 PM | PERMALINK

>>> If I'm reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners.

Kevin -- your statement, while technically accurate, doesn't go far enough (or is at least potentially misleading). Nothing in the new law requires that the target (the "person reasonably believed to be outside of the United States") must be (or even "be reasonably believed to be") a NON-
CITIZEN.

To be clear: Not only does the law allow "eavesdropping . . . on Americans talking to foreigners" -- it allows "eavesdropping . . . on Americans TALKING TO AMERICANS" so long as one of the two American citizens is "reasonably believed" (! by the Attorney General, mind you!) to have set foot outside of the United States.

Posted by: packerland_progressive on August 7, 2007 at 12:25 AM | PERMALINK




 

 

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