Speaking of newspaper-ese, WTF is a "tick-tock"?

I imagine that lots of purely domestic communication could be said to "concern" foreigners, couldn't it?

Yes.

House bill HR3356, which didn't pass (here):

Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States...

Senate bill S1927, which passed (here):

Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States...

One other interesting tidbit that confirmed what I thought -- the uptick in "terrorist chatter" was used to threaten them. To be honest, I think that's what made the Dems fold. And that's not necessarily an irrational thing to do, assuming it's credible.

But who knows if it is. I doubt it's pure bullshit, but you can easily see how everyday chatter could be, um, selectively emphasized.

But then again, there's been a lot of these reports, so maybe they're legitimately afraid. Who knows -- it's frustrating that it's literally impossible for us to know.

I'm confused about Problem #3 too. Check out Lederman here for my source, but Pincus (or his Dem sources) aren't making sense here.

Here's my problem -- The White House bill exempted a big chunk of communications ["X"] from FISA, and then provided toothless oversight for obtaining X. The oversight provisions, though, don't really add or subtract anything to the scope of X -- they just relate to how you review X. So, nothing comes in through the oversight provisions (i.e., the "concerning" language) that's not already in through the first provision which exempted everything from "electronic surv." in the first place (i.e., X).

The point is that if the Dems wanted to complain, it should have been complaining about 105A -- the broad "directed at" language. "Concerning" seems to be a fight about nothing.

The Dems, 'tis true, also used "directed at" but they didn't exempt as much from the term "electronic surveillance." So they used "directed at" toward some set of communications less than X

This is a comment not a post, so I can't give it my 100% sure stamp of approval (worth its weight in gold of course), but that's what confuses me.

Sorry, forgot to include the following relevant section from HR3356:

(A) a statement that the electronic surveillance is directed at persons reasonably believed to be outside the United States

The first problem seems to me to indicate that the administration wants to remove the distinction between foreign intelligence targets outside the country and within the country. Meaning that if information about a foreign intelligence target exists in some way inside the country, they want to be able to pursue it.

For the third problem, suppose U.S. citizen X lives in Florida, and U.S. citizen Y lives in California. If X and Y communicate about a foreigner, then this bill allows that conversation to be intercepted without a warrant. Is this interpretation of the wording correct?

dvg: I think if anything that interpretation is too narrow. If you have U.S. citizen X in Texas, and U.S. citizen Y in New York, talking about their U.S. citizen relative living in London, then that conversation "concerns" someone outside the country. This amendment arguably makes domestic-to-domestic discussions between US citizens, about US citizens, legally wiretappable provided at least one of the US citizens talked about is at least temporarily outside the US.

(If you want the obvious next step, replace London in the above paragraph with Gitmo).

dvg4048 - Yes, that seems to be the correct interpretation. Even as to some of the, or at least on the surface appear to be, more clear cut provisions discussed by Publius and others above, are really just as wide open as this sub-part due to the gatekeeper (AG Gonzales), implementation standard (reasonably believed) and review standard (none individually, FISA Court gets to accept AG's avowal everything is kosher; which means there is no review effectively). Bottom line is anything goes for any subjects, anywhere, any time. Furthermore, with the six month sunset provision implications for making claims not fully litigated by the expiration potentially moot, combined with the inherent inability to establish standing (See ACLU v. NSA, 6th Circuit CofA), there is effectively no way to challenge on either Constitutional or statutory grounds. Anything goes.

publius: "Concerning" seems to be a fight about nothing.

Disagree. If we, within the US, have a conversation "concerning persons reasonably believed to be outside the United States", then our conversation is subject to surveillance without a court order.

The obvious question is: How do they identify communication "concerning persons reasonably believed to be outside the United States". The law only says that the "Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States".

That covers a helluva lot of territory that has nothing to do with national security. Mention virtually anyone in the international news (or a friend or relative overseas) and the communication is subject to surveillance. And if history is any guide, that list of persons will continue to grow without bound.

E.g., if you and I, as US residents, talk about OBL, our conversation is subject to surveillance (assuming of course that OBL is "reasonably believed to be outside the United States"). So how do they know we are talking about OBL? They don't. Not without a massive vacuum cleaner. (And I can already hear the massive sucking sound, and the grinding as it seaches for key words and phrases). That is where the difference between "directed at" and "concerning" becomes very significant.

Kevin, once again you have misunderstood what the new law does. All it does is it permits our Commander-in-Chief to listen to foreign communications without a warrant which was banned by FISA. This is reported by CHARLES KRAUTHAMMER of the Washington Post.

Link

"That means it will become an issue early next year, and the Republicans will win again. That is a slam dunk issue for the president. It means if a bad guy in Pakistan is speaking to a bad guy in London, and if the speech or the email happens to go through a router in the U.S., or computer in the U.S., under the old law you'd have to get a warrant, which is absurd."

has407 - Correct. Literally, mentioning the Iraq war is enough. Here is the clincher, my guess is that they will interpret this to mean that not each conversation has to concern someone outside the US, any reference at any time by either party to a conversation is enough. In this way they will have expanded their scope to include every conversation occurring in the US. Also do not forget about email and cell traffic which just about all have some node component tangentially involving international fiber trunk cables, satellite links, foreign ownership of the companies etc. Anything goes, anywhere, any time.

Al, you are as ignorant and disingenuous as Krauthammer is ugly and shriveled. Either that or you are a parody troll, in which case you are an unamusing waste of time that needs to get a life. Remarkably pathetic either way.

Er, Al. The whole point of Drum's entry -- as well as of a lot of previous comments on the subject -- is that Krauthammer (as usual) is spouting pure garbage. As Drum (and the Post) said, nobody in either party opposed unlimited monitoring of foreign-to-foreign calls. What we now have instead is a Nixonian law allowing the NSA (on the President's orders) to monitor virtually ANYONE'S calls within the US itself, for any reason he chooses.

bmaz -- Agree. So let's call it like it is: Virtually all communications are subject to surveillance based solely on the discretion of the AG and DNI.

Remind me again how serious terrorism is. How many Americans on American soil, for example, have been killed by foreign terrorists in the last five, ten, and twenty year periods. How many serious plots (no, sorry, you can't count idiots who are going to take down a bridge with blowtorches, invade military bases, or whose brilliant plans require that they get federal assistance in order to purchase combat boots) have been thwarted and how many do we honestly think exist?

Unless you can use these odd things called "facts" to demonstrate that terrorism is a real threat you are merely playing along with the RNC - an organization whose main purpose is to frighten Americans into a political action they would not otherwise take.

Yeah, I'm sure this fascist legislation is gonna catch us a lot of them ther al-Qaeda types - since they are all so dumb. They couldn't possibly read the papers and know their phone calls and e-mails are being monitored.

Osama bin Laden has a degree in engineering. Ayman Zawahiri, his second in command, is a medical doctor. These are not stupid men. You don't think they are telling their followers not to use phones to convey sensitive plans and information? Who are the stupid ones here???

#1. The "Concerning" thing. To be blunt, if they're tapping lines IN ADVANCE to know that the individuals are talking about a foreigner, then quite frankly this whole thing is nothing more than political kabuki, and it's absolutely meaningless. It leads me to believe that the Democrats who voted for it believe that the definition of concerning in this case is meaning involving. I know that where I work, when the word concerning is used in this fashion, it means involving.

#2. The whole game was set when people agreed that spying on foreigners without a warrant is ok. This took it away from being a moral or ethical issue, and is simply now an issue of legality.

Here's an example, you get a warrant to listen to a suspected drug kingpin or whatever, you listen to their calls. But you're also listening to the calls of whoever is talking to them, even though you do NOT have any reasonable cause to be listening to them. However, the legal system is fine with that.

I suspect that the legal system would be fine with the "collateral freedom damage" being done here, just the same.

This was NEVER a winnable vector. A winnable vector would be to create a firewall between intelligence and politicals, so intelligence is never used for political gain or influence...ironically enough, just like what happened in this case.

All this parsing is, of course, interesting and I hope that discussions like it continue till this nonsense is allowed to sunset.

My concern is that even when the Administration's own weak oversight (AG sign-offs every 45 days) tried to prevent their activities, the White House tried, illegally, to get a bed-bound Ashcroft to sign (which wouldn't have mattered even if he had, not least because he wasn't acting AG). When this failed, they were going to go ahead and do it anyway. I believe that this whole thing was at best exra-legal in the first place, but there is not one iota of evidence that trying to go over the AG's head was anything but illegal.

Of course the ultimate solution was to install a more pliant AG, but the fact remains that they have proven again and again that they will do what they want regardless of any particular bill's language. I believe that this whole battle with Congress fits well into the White House's MO: keep asking for the most unpalatable things until Congress balks, then claim that Congress is being unreasonable if they finally balk (then go ahead and do what you want anyway).

tick-tock: Moment-by-moment developments. Minutia. "We're trying to stay focused on the Big Picture, not the tick-tock." In journalism parlance, it's a story that recounts minute-by-minute the breathless details of a single event.
Nominated by Barbara Miller

____1966 H.D. Quigg. UPI Sunday reprise of Charles Joseph Whitman’s shooting from a bell tower on the University of Texas campus. A very early example of tick-tock journalism and very well done. (Paul Harral)

THe main issue, for me, is that the bill assumes good faith in those who administer it. we KNOW that this will not be true - these clowns are doing things in BAD faith.

In addition, there is an implicit post hoc fallacy in the entire thing. They talk about "terrorists" being monitored, and "aliens" being tapped. How do we know that someone is a terrorist BEFORE we monitor? Answer: We do not, and so we must listen to all.

Just because Congress passes a law doesn't make the law constitutional. Of course, the problem is that we will never hear about the abuse of our constitutional rights. It will be buried. We will only hear about the fruits of that abuse. The abuse will remain top secret.

Oh, for those of you who are going to claim that the changes are focused on protecting us from the terrorists. Wrong, by its very terms the NSA can listen in on who ever it wants without a warrant, just so long as one of the people on the conversation is in a foreign country.

We used to have people in this country who cared deeply about the Constitution. Now, not so much.

Honestly, I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens.

The real issue is confining eavesdropping information only to terrorist related info. If information is collected in the process that could be used for political purposes or other criminal purposes, then there needs to be a barrier that prevents politicians and political operatives from accessing the information.

The problem with the Bush administration is that they politicize EVERYTHING and have political operatives EVERYWHERE. We have to assume that Bush has poliitical operatives within NSA who are relaying non-terrorist related politically sensitive information to the political bosses.

E.g., if you and I, as US residents, talk about OBL, our conversation is subject to surveillance (assuming of course that OBL is "reasonably believed to be outside the United States"). So how do they know we are talking about OBL? They don't. Not without a massive vacuum cleaner.

This deserves more emphasis; my assumption is that the NSA built this wonderful all-calls eavesdropping toy, and by hook or crook, "someone" wants to use it.

I can also imagine some pretty interesting horse-trading going on. "You say there's more chatter now, and we're at risk? Fine, take your toy out for a spin, see what it turns up." And what if it finds nothing?

Somehow, for all the claims about the value of this intelligence gathering, the plots, even the lame ones, seem to get caught with police work. And we've also had some notable screwups; innocent people arrested and/or tortured, an innocent man shot by police in Britain, and a truckload of unbelievable "confessions" from an actual bad guy. Our hit/miss ratio is not so good, and our "hits" are lame. So, what good exactly is all this snooping?

Actually, I think I've discovered the next meme, you heard it here first: "Enhanced snooping doesn't help us catch terrorists, but it does help us determine when ordinary citizens are just that, and thus avoids expensive and inconvenient arrest of innocent Americans". It's perfect -- the domestic spying program justified by the results it doesn't produce.

(C'mon, you know that they'll at least try this one on for size :-)

Ah, Kevin.

I've been reading alot of the comments on here. As usual, very heavy with the hysteria.

Do you guys seriously believe that these intelligence professionals will interpret this law to mean tapping ANYONE's calls. Do you really believe they would be that inethical?

You guys just want to belive in any conspiracy, no matter how wackey. These people are professionals, and they have only one goal - to PROTECT us. They're not involve in petty political squabals or listening to joe shmoe just for the fun of it. These people are PROFESSIONALS.

publius: "Concerning" seems to be a fight about nothing . . .

By no means. If Clinton has a phone conversation with one of her advisors about al Qaeda and Osama bin Laden . . . well, that's "concerning," isn't it?

Do you guys seriously believe that these intelligence professionals will interpret this law to mean tapping ANYONE's calls. Do you really believe they would be that inethical [sic]?

You don't believe in the rule of law, do you? You just want to trust in the good faith of those to whom we entrust great power? And you call yourself a conservative?

Jeez, when you leave your house, don't lock the door--surely no one would be so "inethical" as to steal from you?

Look, I understand there's a difference in the words "concerning" and "directed." my point above was that this doesn't matter given the nature of the statute. The "concerning" relates to a different part -- it relates to oversight of a set of information already taken out of FISA.

I.e, -- given the structure of the statute, the "concerning" provision doesn't add anything as far as i can tell

August 09, 2007
Appeals Court Battle Over NSA Surveillance on August 15
Government Aims to Block Accountability for Illegal Spying on Americans

San Francisco - In the wake of Congress approving a dramatic expansion of U.S. warrantless wiretapping powers, the 9th U.S. Circuit Court of Appeals will hear arguments on the future of two critical lawsuits over illegal surveillance of Americans. The hearing is set for August 15, at 2 p.m. in San Francisco.

The government is fighting to get the cases thrown out of court, contending that the litigation jeopardizes state secrets. The Electronic Frontier Foundation (EFF) is representing the plaintiffs in Hepting v. AT&T, which accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal electronic surveillance of millions of AT&T's customers. The court will also hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.

"At issue here is whether the courts have any meaningful role to play in protecting Americans' privacy from Executive branch abuses of its surveillance powers," said EFF Legal Director Cindy Cohn. "If the claim of 'state secrets' is allowed to shut down litigation, then the courts will never be able to exercise their Constitutional duty to hold the White House accountable for illegal and even unconstitutional abuses of power."

The court has scheduled one hour of arguments for Hepting v. AT&T, and 40 minutes for Al-Haramain Islamic Foundation v. Bush. Because of the large number of attendees expected at Wednesday's hearing, the court will provide an overflow room with audio and video of the proceedings for spectators who cannot get a seat in the courtroom itself.
contact press@eff.org.
WHAT:
Hepting v. AT&T
Al-Haramain Islamic Foundation v. Bush
WHEN:
2 p.m.
Wednesday, August 15

WHERE:
9th U.S. Circuit Court of Appeals
Courtroom 1, 3rd Floor
95 Seventh Street
San Francisco, CA 94103

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att

This comment really belongs on an earlier thread about FISA, wherein Kevin notes that "national security hawks" always have the upper hand because of their opponents' fear that being wrong just once could end their political careers.

I'd like to point out that the same dynamic has been what has fueled the insane growth of incarceration rates and consequent length of sentences. Parole? Wille Horton. Lifetime monitoring of sex offenders? Poily Klaas. We will not rest until every jaywalking scofflaw has done some serious time. If you let them out, they will just jaywalk again.

Anyone remember Eschalon? The world-wide wiretapping apparatus set up by the US?

AFAIK, it allegedly contained a 'recriprocal' arrangements with certain foreign powers that pretty much allowed the US govt unlimited surviellance of anyone, anywhere, anytime... US citizen or not.

For example, if the NSA wanted info on conversations by two US citizens, they would just route a request through the British. The Brits, not bound by US law, would forward the interceptions back to the US.

So I wonder what's really going on behind the scenes... specifically why the Eschalon back-door wasn't good enough for the Bush regime. Methinks there's something more in play here.

Secret courts, secret cabals, imperial presidency... not good for the common folk.

The United States has fallen to 41st in life expectancy. And not because of explosives. Our obsession with guns, violence, and blaming others for our woes means that important issues are shunted aside. We are literally our own worst enemy. Maybe the NSA can listen in on some medical calls, and overrule the attending provider. We are consumed by wars of choice, paranoia of the moment, and nightmare images self-constructed and realized. We need to take better care of Americans. We need to spend more money on the needs of those over-worked, too-rapidly dying under-served people. The current glut of lies and intimidation isn't helping a single person anywhere.

That we talk of terrorism when the nation victimizes its own is all one need know about 2007 America.

Kevin: "But McConnell deemed the bill's 'fine print' unacceptable, and refused to accept it."

"Fine print" is found on promotional items such as box-top promotions offered by cereal companies, and also on certain standardized contracts. It is called such because the print size of some if its provisions are one size or more smaller than that found in the rest of that promotion or contract.

A legislative bill does not contain "fine print", unless the article's authors are using that as a euphemism for actual and far-too-numerous details in a given measure that they themselves probably tired of reading.

Speaking as a former policy analyst who for years wrote and studied legislation on both the state legislative and congressional levels, I can assure you that when it comes to lawmaking, the old adage that "the devil is always in the details" is certainly applicable at all times.

One should always pay particular attention to those details in order to actually determine what a bill actually authorizes, rather than merely listen to what either a measure's proponents or its detractors say it's going or not going to do.

Further, I've found from experience that the worst legislation ever written -- or sometimes even passed -- is that in which its provisions have been reduced in detail to the level of generalization, leaving such measures subject to varying degrees of legal interpretation.

Such legislation has either been written and passed in haste in order to deal with an emergency situation or another issue of immediate or pressing concern, or has been the subject of such controversy and contention that various offending provisions have either been removed or amended substantively in order to secure the votes necessary for its passage.

If ever passed and subsequently authorized and enrolled into law, such a measure automatically becomes a candidate for future litigation because eventually some person or entity will run afoul of its contents, which have been generalized to a point where the measure's legal applicability becomes sweeping and overarching, rather than targeted and specific.

Therefore, show me any elected legislative official -- local, state, or federal -- who publicly or privately expresses disdain or contempt for legislative detail, and I'll show you either:

(a) A self-promoting fool, often prone to demagoguery, who is only along for the ride and therefore doesn't know or care what's going on whilst "on the job"; or

(b) A cunning charlatan who, for whatever his or her reason, seeks to deceive the general public as to the actual contents and provisions of a given legislative measure.

Hmm. Analysis of this depth might have been nice to have BEFORE THE LAW WAS CHANGED!!!

Thanks again for your helpful contribution to timely democratic debate, MSM.

Speaking of surveillance, it appears that not only is our privacy being lost on the phone and in e-mail but also in our walks around town. The Boston Globe reports today that

"The Department of Homeland Security is funneling millions of dollars to local governments nationwide for purchasing high-tech video camera networks, accelerating the rise of a "surveillance society" in which the sense of freedom that stems from being anonymous in public will be lost, privacy rights advocates warn."

Besides places like Madison, WI and St. Paul, MN we have little towns using homeland security money to buy and install cameras.

"Recent examples include Liberty, Kan. (population 95), which accepted a federal grant to install a $5,000 G2 Sentinel camera in its park, and Scottsbluff, Neb. (population 14,000), where police used a $180,000 Homeland Security Department grant to purchase four closed-circuit digital cameras and two monitors, a system originally designed for Times Square in New York City."

Orwell, here we come...

US Doles Out Millions for Street Cameras

The original FISA constructs were hardly a civil libertarians dream. So while we have certainly and secretly removed some restraints, one has to wonder if the real danger in all of this isn't from the technology and actual information intercepted (cause those pesky furriners don't always respect the the "English as Offical Language rules"). The track record of the intelligence communities isn't exactly sterling for effectiveness.

The real danger is honestly more that Bushco can "make sh*t up" and pass it through the whole apparatus as real! Read some of Lew Koch's accounts of the Padilla trial at FDL. The evidence is absolutely paltry, and the key piece of evidence is one of those "because our secret super duper source said so and you can't question him" items.

Combine no warrants, with excessive secrecy, with a dollop of executive privilege on top, just in case anything slipped through and we've just about done away with any constitutional protections. Just as one final insurance policy, the federal courts have lots of Bush loyal judges to rubber stamp the injustices. (However, judges can be pesky critters, so we want to avoid them at all costs).

Rick,

I think you make a lot of very important points. Does NSA really have thousands of foreign language translators? Or do they use some sort of computer-aided translation program? None of this makes much sense to me as a reliable anti-terrorism (translation problems plus the oft-mentioned fact that any terrorist worth his salt will not use electronic communication and if such communication is necessary will use a code that is unbreakable, e.g., word substitution). If one accepts these limitations as accurate, then where does that leave us? The obvious conclusion is that our government is setting up an apparatus to monitor the electronic communications of US citizens, although for what purpose as yet remains unclear without succumbing to severe paranoia.

nepeta: "Speaking of surveillance, it appears that not only is our privacy being lost on the phone and in e-mail but also in our walks around town."

It's not cameras themselves that concern me, but those reason(s) publicly expressed for their use. Thus far, most of those reasons appear benign.

My cousin's hometown bought a surveillance camera and turned it into a webcam, and posted its images on the internet until that camera was recently struck by lightning and put out of commission. Here in Honolulu, we have them all over the downtown area and major thoroughfares of our city, including one that's two blocks from my home. We use them to monitor traffic, and I find them to be invaluable sometimes, especially since I live along a heavily travelled corridor.

We can and should forthrightly address those issues of public concern regarding the potential misuse or abuse of modern technology and set appropriate boundaries accordingly, without having to revert to such arbitrary and decisive standards more befitting the Luddites of 19th century Britain than a modern and progressive 21st-century society.

Regarding my own concerns about the use of these cameras, the trigger that will set off my alarm bells will be when municipalities provide for the appropriation of public funds -- either through direct allocation of municipal funds or an application for state or federal dollars -- to allow their police departments to hire the extra personnel necessary to monitor such cameras on a full-time basis, which is a capacity most small and medium-sized municipalities do not currently enjoy.

And as one who worked in the public sector for years, my own experience tells me that it's one helluva lot easier to publicly monitor the human resources and personnel decisions of public agencies, rather than trace and track those myriad decisions concerning the procurement of individual pieces of equipment. You can always hide an invoice through accounting chicanery; it's a lot harder to hide an actual warm body using similar means.

Whenever you have concerns about whatever it is your city or town might be doing -- be it the use of surveillance cameras, land-use zoning and building permits, or road repair and maintenance -- you need to start by asking relevant questions of your public officials yourself, and not wait for your neighbors or local media to do it for you.

If you find unsatisfactory the answer you received from these officials, most town or city charters provide its citizens the right to demand that such matters be placed before the general public in a timely manner, often through a council meeting or a contested case hearing -- sometimes, depending upon the jurisdiction, a single complaint from one individual is sufficient to trigger the hearings process.

The key here, as Ben Franklin advises, is eternal public vigilance of our own government. It's both our right and our obligation.

Donald,

I had assumed that at this point the camera surveillance in most places was benign and used for local interests only as you suggest. My worry is that once the 'infrastructure' of surveillance becomes the norm, it will be used for all sorts of heinous purposes, including those of a police state, in monitoring dissidents and protesters and used for the imprisonment of same. It's not there yet.

You'll notice the hurried push by the administration to revise FISA systems came after the duplicitous attorney general had clear difficulty testifying before Congress about the episode with Ashcroft--recall whatever they took to the bedside was egregious enough for adminstration staffers to threaten to resign. Subsequently, there was debate whether Gonzales was talking about "the much discussed" surveillance program--or something else. Recall FBI Director Mueller seemed to have a divergence of thought.

The admin. push was to amend the FISA protections and requirements for warrants--the administration wanted to continue to be the lawbreakers that they are, and not be challenged.
It is subversion, defined as subverting, overthrowing and ruining something established-FISA

Bottom line: They could have drawn on existing frameworks to collect intelligence on terrorists. Instead, they pushed Congress to arrange the law to suit their systems and still conceal their illegal actions. And they did it with nationalistic slogans, presidential rhetoric, and fear-mongering progaganda. Does anyone notice the decline of critical coverage on the FISA revision process?