I have to wonder if the administration actually lobed a softball to the FISA court to create a finding which they could portray as a crisis. After all, these guys aren't good at much, but manipulating the system is one thing they are good at.

Kevin: Exactly! It's ALL been a smokescreen, this entire "war on terror" charade.

And on a related note, ....

England Prevails!
~ Lewis Prothero [V for Vendetta]

Police To Use Terror Laws On Heathrow Climate Protesters
Government has encouraged use of stop and search and detention without charge
by John Vidal and Helen Pidd [The Guardian/UK]

Armed police will use anti-terrorism powers to "deal robustly" with climate change protesters at Heathrow next week, as confrontations threaten to bring major delays to the already overstretched airport.

Up to 1,800 extra officers will be drafted in to prevent an estimated 1,500 people disrupting the airport over the period of the camp for climate change, which is due to begin on Tuesday. The police have been told to use stop and search powers against the protesters, who have pledged to take direct action on August 18 and 19 but not to endanger life. ...

The law gives police powers to:

· Stop and search people and vehicles for anything that could be used in connection with terrorism

· Search people even if they do not have evidence to suspect them

· Hold people for up to a month without charge

· Search homes and remove protesters' outer clothes, such as hats, shoes and coats. ...

As I understand it, the FISA court issues warrants. They may be rubber-stamp, retroactive warrants, but warrants none the less. For all-foreign surveillance, no warrant is needed. FISA warrants were for when one party -- a suspected spy -- is in the US.

But on principle (?!) the Bush Administration is opposed to having to obtain any warrants of any kind.

thank you, nancy and harry, for your pathetic strategic thinking. and must give props to the democratic cowards who are more concerned with their vacation than standing up for their country as its founding principles are ripped to shreds.

So, does this all mean everytime I call customer support and get switched to someone in India, NSA will monitor my call?

So, does this all mean everytime I call customer support and get switched to someone in India, NSA will monitor my call?
Posted by: martin on August 12, 2007 at 2:14 PM

Yes, but it doesn't insure better service.

We need new Democratic leaders. You know, people who really care about the constitution.

Just goes to show how incompetent the Democratic leadership in Congress has been and why so many people are so disappointed in them. They were elected to act as a counterweight to Bush, not to enable him.

So everyone is rightly busting on the Dems for this embarrassment, but why did they really go along? Isn't that the truly important story here? They must have realized that this was going to be very upsetting to their progressive base. Simple answers, like they are a bunch of dumb-asses who couldn't negotiate their way out of a paper bag, are satisfying to say, but really can't explain why 16 Dem Senators would go for this bill.

I can see numerous possible explanations and, of course, not every Senator necessarily voted with the Repubs for the same reason. I have to say that some of the possible ideas that come to an imaginative mind are truly frightening. Nevertheless, the one that seems most plausible to me is that these Dems really believe we are at risk of imminent terrorist attack and know their political careers would be over if they voted against this bill just before such an attack (as Kevin, I think?, mentioned or linked here a few days ago). Whether or not the mid-summer "gut feelings" of people like Chertoff are realistic indicators of threat levels, just ponder how damaging this vote will be to our political process if the intel, as is very likely, was nothing more than a bluff.

With their shocking surrender over President Bush's draconian new FISA law, Congressional Democrats snatched defeat from the jaws of victory. They not only had the votes to safeguard American civil liberties and prevent the legalization of past Bush White House criminality. On FISA as we knew it before August 5, 2007, Democrats had the law - and public opinion - on their side.

For the details, see:
"Democrats Snatch Defeat from Jaws of Victory on FISA."

It's quite amazing to me how easily the Constitution is being dismantled. Am I wrong to suggest that Amendments 3 through 6 have pretty much been rendered inoperative as far they might relate to "national security" investigations? I think the key to the FISA fiasco is that the Dem leadership actually supported the legislation else they would not have brought it to a vote. One has to wonder as Digby does (http://tinyurl.com/2g7rvj) if the Dems actually pandering were those voting no and we were the ones being pandered to! Truly scary times.

Let me point to an aspect of this story that is hinted at by the Post article, but (no doubt for specific reasons) is not fully developed.

This is not just about terrorism. The same expansion in communications that would make of calls or e-mails related to terrorism needles in an exponentially bigger haystack do the same thing for calls and e-mails related to state espionage, criminal activity, and other things in which the government has an interest. This fact isn't uppermost in the public discussion of the FISA changes -- the Bush administration prefers to keep attention on the terrorism question, and the Democrats are genuinely undecided as to how much of the surveillance authorized in this legislation is needed or desirable.

My impression, though, is that behind the scenes everyone recognizes that we are talking about more than Osama bin Laden calling people in the United States. Someone like McConnell, a career intelligence professional, would certainly be aware of the relevance of the FISA changes to, for example, counterintelligence directed at the Russians or Chinese, and so would the Vice President.

This isn't a defense of the FISA changes themselves -- personally, and speaking as someone with a very limited technical background in this area, I have some doubts as to whether the government has the ability to do all the things Congress has just authorized it to do. I could certainly understand reactions to this legislation based primarily on the visceral distrust the Bush administration has done so much to cultivate. My only point is that it seems unlikely McConnell would have sought so much authority if terrrism were the only issue on the table.

Ah, Kevin.

Hooray indeed, Kevin.

Now I can sleep sounder at night under the realization that I and my country are being protected by professional intelligence surveyors doing their level best to protect I and my country.

Kevin,

You've got everything right except for the last part. The "concerning" language is only in 105B, not 105A, so the bill doesn't allow for the wiretapping or interception of purely domestic communications that merely "concern" foreigners. The "concerning" language in 105B only applies intelligence gathering that does not amount to "electronic surveillance" under FISA. In other words, this language is direct at non-content information, probably data mining related stuff.

Man, it's almost as if they're trying to do something really inexcusable, like tapping the phones of Democrats for political reasons, and they simply want to silence the watchdogs.

A quick note from me:

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?

For an alternative view, arguing the case that Congress was responding to a real threat, see beachmom's post at

http://raisingkaine.com/showDiary.do?diaryId=9845

The point to remember here is that, while political calculation is always a factor in political decisions and one party or the other does get outmaneuvered from time to time, there may be other, perhaps even more important, factors as well. Monomaniacal focus on the political game and who's winning or losing can be a serious disservice to serious thought about what is actually going on.

I said this over at Matt's place and I'll repeat it here: Bush could announce he was starting internment camps for Democratic members of Congress and Democratic members of Congress would vote to authorize it.

No, that is not hyperbole.

Let's straighten out a few points of contention.

FIRST, there was no compelling need to "change" or modify any existing FISA laws. That is the LIE they are telling to justify this. FISA has been amended as technology has changed. If someone invents a new way to communicate wirelessly, FISA can and will be amended and updated to adapt to that new technology, if it is needed.

SECOND, this was about removing the oversight, not increasing the ability to conduct surveillance. We have always had, under FISA, the ability to monitor communications for 72 hours without a warrant. We have always had the ability to surveil foreigners without a warrant. And, MOST IMPORTANTLY, if anyone talks to a terrorist, no matter who they are, those communications can be collected without a warrant. The FISA court was there to ensure these basic rules were followed and that there was a check on the power of the Executive should they attempt to collect communications outside of these basic rules.

THIRD, Oversight is of increasing and desperate importance, given that the US Attorneys in this country are now the political enforcement arm of the Republican Party. Any US Attorney can now indict a US citizen based on what they "discover" as evidence, thanks to the new FISA laws. How would that happen? With no oversight whatsoever, the surveillance capability of the United States of America can be used against any US citizen. We now know that at least one judge resigned from the FISA court because of abuses of power. We have clear evidence that the FBI has abused the power of National Security Letters. Now we see that other intelligence agencies can combine that with the most technologically advanced surveillance capabilities in existence. They have the complicity of virtually every telecommunications company in this country and now no reason to comply with the wishes of any company that dissents. So if the full weight of the US government can now be wielded against a US citizen--with no oversight, no check on the overreaching power--what reasonable person could conclude that this system will not be abused?

It's not like they haven't done it before. FISA was created out of the findings of the Church Committee in the 1970s, which discovered rampant abuse of surveillance abilities by the Executive Branch for political purposes. The abuse of power is not limited to the Republicans or Democrats. Therefore, we need oversight to keep them in line.

They are not interested in defending this country; they want to intimidate their political enemies and hold on to political power.

This isn't a defense of the FISA changes themselves -- personally, and speaking as someone with a very limited technical background in this area, I have some doubts as to whether the government has the ability to do all the things Congress has just authorized it to do.

They more than have that ability. They have the ability to archive it, store it and search it at their leisure. There is nothing they have not spent *billions* of dollars creating sophisticated systems in order to do just that. Don't kid yourselves--they are patiently waiting, for example, for all manner of next generation cellular technology to be deployed so they can more accurately collect and exploit those networks. Hello? iPhone users? Enjoy your little toys. The government is reportedly in the business of encouraging people to develop "better" and "more sophisticated" encryption systems, which it then merely buys before they're even deployed--that's what is so "profitable" about marketing them to people. "Encyption" is another way of saying "go ahead and say what you think we can't understand--we WANT you to feel safe and secure about breaking the law because it makes it easier for us."

I could certainly understand reactions to this legislation based primarily on the visceral distrust the Bush administration has done so much to cultivate. My only point is that it seems unlikely McConnell would have sought so much authority if terrrism were the only issue on the table.

How naive are you? There is virtually no serious terror threat to this country. They are not interested in doing anything to stop terrorism at all. Last time I checked, containers came into our ports, cargo came through our air terminals, trucks came through border checkpoints in massive numbers without so much as a dog with a wet nose checking them out. We allow more items to come into this country without being searched or checked than ever before. We have a completely unsecure border with one of the most lawless countries in the world, which is Mexico, and Mexico doesn't care what happens to this country.

The threat of terror is what is being used to scare you into giving them unprecedented access to the tools they need to intimidate their political enemies. They don't give a damn whether a terrorist kills you or not--if they did, would they really be in Iraq, creating more terrorists? Would they allow the northwest region of Pakistan to become the headquarters of al Qaeda? Would they reduce the numbers of first responders and leave the borders open? Would they spend billions to create a department of "Homeland Security" and then botch the job so completely as to allow this department to become the laughingstock of organized society? DHS can stop your Grandma from bringing a bottle of shampoo on an aircraft but it can't stop the people who test the system from showing, time after time, that the screening process misses guns, knives and bomb materials.

Wake up. They don't give a shit about you. They care about holding on to power.

But, didn't Harry Reid stop more survailance in counting rooms on The Strip?

And a side note - Last week in Spokane, WA, a former security guard at the U.S. District Court House was brought up on charges that he had directed roof top security cameras to view, er leer, into condo bedrooms across the street. The guard lives in, aptly though, in Cheney, WA. Possibly viewing DVDs of "Ahmadinejad does Dallas".

And, MOST IMPORTANTLY, if anyone talks to a terrorist, no matter who they are, those communications can be collected without a warrant.
Posted by: Pale Rider on August 13, 2007 at 9:49 AM |

That happens to be true now, but under the provisions of FISA in effect before the Dems caved -- which you are talking about in the context of your comment -- your assertion is quite mistaken.

Actually, Kevin, the problem is that this administration and their toads think Quakers, Greens, Democrats, and anyone else who thinks they are wrong is a terrorist.

This enables them to tap just about anyone except boy-chasing, child-molseting card-carrying Republicans. And you know, that *is* a problem.

That happens to be true now, but under the provisions of FISA in effect before the Dems caved -- which you are talking about in the context of your comment -- your assertion is quite mistaken.

And herein is a perfect example of the lies being told--you are one hundred percent wrong.

The intercepted communications of ANYONE engaged in planning, supporting, financing or backing a terrorist against this country has not nor has it ever required to have any kind of a warrant so long as one of the parties involved is, in fact, a foreigner engaged in that activity. If that person talks to a US person, a FISA warrant MOST CERTAINLY IS NOT required but the communications are simply reviewed as part of the ongoing process of collecting and disseminating information. Bet you didn't know that, did you? Because so long as one end of the conversation is a non-US entity, we have always been able to collect that information--something they simply don't want you to know.

This is irregardless of whether the communications are "routed" through US territory or through a telecommunications switch located in the US. This has NOTHING to do with the location of switches or anything like that. In fact, read up on how most of the world's telecommunications traffic is routed through a certain switch physically located in Northern Virginia and then perhaps you can explain why a certain intelligence agency and several hundred billion dollars worth of facilities, personnel and technology also happens to be located in that same general area of Northern Virginia.

You have bought their lies because that's all they have to sell. This system has been in place long before 9/11 and no amount of "lying" about the so-called "Gorelick Memo" or anything of the kind can change that. The NSA had comms on the 9/11 hijackers--all well within the bounds of the law and all collected without interference of a FISA court, even though they were operating in this country. Why didn't we stop them? Well, because the FBI wasn't telling anyone what they knew and the NSA translated the intercepted communications days after 9/11.

See, if you knew that, you wouldn't make such a ridiculous assertion.

Now, if BOTH parties are US Persons, collection and dissemination can begin and continue for 72 hours until such time as the FISA court can convene and see the evidence. The operation will not be stopped unless ordered to stop by the FISA court. Anyone engaged in collecting on these persons has to ANSWER to a higher authority for their actions--this is called accountability. If an intel agent has legitimate reasons to conduct surveillance, the courts and the oversight personnel will gladly sign off on the work being done.

Please STOP viewing this through the media filter and the filter of popular entertainment. There is no dastardly, unimaginative bureaucrat engaged in thwarting the efforts of an intrepid and dazzling young intel agent who just wants to stop the terrorists while the bean counters just want to save money. This is not a "plot line" and there is no correlation between this issue and whatever crap sandwich of a TV show you think you remember.

That's called "checks and balances" and your government just flushed that shit away, along with your Fourth Amendment rights.

FISA has granted tens of thousands of warrants, blocked about 6 of them, and has served as a check on the power of the Executive to intimidate and collect information on its internal political enemies.

The NSA is part of the Department of Defense. The DoD, on more than one occasion, has been found to be working outside of the scope of the FISA courts and all reasonable interpretations of the law by collecting and storing information about peace activists in this country--connect those dots, why don't you?

Precedent goes a long ways towards explaining why this is so important. A shame no one remembers anything anymore. Too many lameass fucking jokes, I guess...

Some historical perspective on the activities of NSA prior to 9/11. Besides complying with the 4th Amendment Rights of US persons, as guaranteed under the Constitution, there is nothing in General Hayden's testimony, which occurred 7 years ago, to indicate that there was ANYTHING stopping them from collecting information against terrorists. NOTHING.

But if you want to believe their lies, go ahead. No reasonable person can conclude they needed to change the FISA law--there was nothing stopping them from collecting information on terrorists--nothing.

-----------------------------------------------
Testimony of NSA DIRECTOR LT GEN MICHAEL V. HAYDEN, USAF

HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE

12 April 2000

The National Security Agency (NSA) performs electronic surveillance to collect foreign intelligence information for the military and policymakers. As the Director of Central Intelligence noted, NSA provides valuable intelligence to U.S. government consumers on a wide range of issues of concern to all Americans, such as international terrorism, narcotics trafficking, and proliferation of weapons of mass destruction. NSA’s electronic surveillance activities are subject to strict regulation by statute1 and Executive Order2 due to the potential intrusiveness and the implications for the privacy of U.S. persons3 of these activities. NSA’s electronic surveillance activities are also subject to oversight from multiple bodies within all three branches of the government. These safeguards have ensured that NSA is operating within its legal authority.

Background

The Seventies were a watershed for the Intelligence Community. Congressional investigating committees, led by Senator Frank Church and Congressman Otis Pike, found that government agencies, including NSA, conducted a number of improper intelligence activities directed against U.S. citizens. The revelations of these committees resulted in new rules for U.S. intelligence agencies, rules meant to inhibit abuses while preserving our intelligence capabilities. In other words, a concerted effort was made to balance the country’s need for foreign intelligence information with the need to protect core individual privacy rights.

A wide-ranging, new intelligence oversight structure was built into U.S. law. A series of laws and Executive Orders established oversight procedures and substantive limitations on intelligence activities. In the aftermath of the Church and Pike committees’ revelations, Congress passed the Foreign Intelligence Surveillance Act (FISA) which created a procedural structure with a special court for considering and approving certain surveillances that occur in the U.S. and thus have the potential to affect rights guaranteed by the Constitution. The House and Senate each established intelligence oversight committees. President Ford issued an Executive Order that established for the first time a formal system of intelligence oversight in the Executive Branch. Oversight mechanisms were established within the Department of Justice and within each intelligence agency. The President also established an independent Intelligence Oversight Board.

The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and - - through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.

Recently, NSA has been the subject of media reports which suggest that NSA collects all electronic communications, spies on U.S. citizens, and provides intelligence information to U.S. companies. There also have been claims that NSA activities are not subject to regulation or oversight. All of these claims are false or misleading. Today, I will describe NSA’s electronic surveillance authority, the framework regulating that authority for the purpose of protecting privacy rights, and the oversight mechanisms in place to monitor NSA’s activities.

NSA’s Electronic Surveillance Authority

NSA’s electronic surveillance authority is found in Executive Order 12333, entitled “Intelligence Activities.� Executive Order 12333 authorizes NSA to collect, process, and disseminate signals intelligence information for national foreign intelligence (and counterintelligence) purposes and in support of U.S. military operations.4

NSA is not authorized to collect all electronic communications. NSA is authorized to collect information only for foreign intelligence purposes and to provide it only to authorized government recipients. This means that NSA is not authorized to provide signals intelligence information to private U.S. companies and we do not do so. Legal proscriptions notwithstanding, as a practical matter, it is not technically possible to collect all electronic communications everywhere in the world on an indiscriminate basis.

Regulation of NSA’s Electronic Surveillance Authority

Electronic surveillance conducted for foreign intelligence purposes is regulated by statutory restrictions flowing from the Foreign Intelligence Surveillance Act, and restrictions flowing from Executive Order 12333, which manifest themselves in the form of restrictions applicable to all intelligence collection activities and specific restrictions (Attorney General Procedures) regulating NSA’s electronic surveillance activities.

Statutory Restriction on Electronic Surveillance in the US. -- Foreign Intelligence Surveillance Act (FISA)

Under FISA, NSA may only target communications of a U.S. person in the United States if a federal judge finds probable cause to believe that the U.S. person is an agent of a foreign power. Probable cause exists when facts and circumstances within the applicant’s knowledge and of which he/she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power. Under the statute, a judge may determine a U.S. person to be an agent of a foreign power only if there is information to support a finding that the individual is a spy, terrorist, saboteur, or someone who aids or abets them.

All FISA collection is regulated by special minimization procedures approved by the FISA Court and the Attorney General. Since the enactment of the FISA in 1978, there have been no more than a very few instances of NSA seeking FISA authorization to target a U.S. person in the United States. In those instances there was probable cause to believe that the individuals were involved in terrorism.

Executive Order 12333 - Restrictions Im-Dosed on All Intelligence Collection Activities

There are certain restrictions imposed by E.O. 12333 upon all intelligence collection activities engaged in by the Executive Branch agencies. Intelligence collection must be conducted in a manner “consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.� (Sec. 2.1). These include the Fourth Amendment’s prohibition against unreasonable searches and seizures. Intelligence collection must not be undertaken to acquire information concerning the domestic activities of U.S. persons. (Sec. 2.3(b)). The least intrusive collection techniques feasible must be used in the United States or against U.S. persons located abroad. (Sec. 2.4). Finally, agencies in the Intelligence Community are prohibited from having other parties engage in activities forbidden by the Executive Order on their behalf. (Sec. 2.12) This means that NSA can not ask another country to illegally spy on U.S. persons on our behalf, and we do not.

Executive Order 12333 Procedures - Specific Restrictions Imposed on NSA’s Collection Techniques

In delegating authority to the Director, NSA in E.O. 12333, the President recognized that certain intelligence gathering techniques, such as signals intelligence, are particularly intrusive and must be conducted in a “reasonable� manner to comport with Fourth Amendment and statutory requirements. The Executive Order requires, therefore, that certain written procedures be implemented regulating such techniques. The procedures are designed to protect constitutional and other legal rights and limit the use of information collected to lawful governmental purposes. The Executive Order requires that the head of the agency (i.e., for NSA, the Secretary of Defense) and the Attorney General approve the procedures.

NSA has such procedures in place. They have been approved by the Secretary of Defense and the Attorney General. They are classified and are appended to DoD Directive 5240.1-R, the DoD regulation which implements E.O. 12333. Prior to implementing or revising these procedures, NSA provides them to the House and Senate intelligence committees, to the Assistant to the Secretary of Defense for Intelligence Oversight and the Intelligence Oversight Board of the President’s Foreign Intelligence Advisory Board. The procedures are incorporated into an NSA Regulation and the substance of the procedures is promulgated throughout the signals intelligence system in a detailed directive, U.S. Signals Intelligence Directive 18, signed by the Director, NSA. This Directive provides a single document in which all the restrictions, whether originating from constitutional, statutory, executive
order, or regulatory provisions, may be found.

Executive Order 12333 Restrictions on Electronic Surveillance Outside the US.

Under E.O. 12333 and implementing regulations signed by the Secretary of Defense and approved by the Attorney General, NSA must obtain the Attorney General’s approval before conducting electronic surveillance directed against a U.S. person abroad. The Attorney General must have probable cause to believe that the person is an agent of a foreign power, either an officer or employee of a foreign power, or a spy, terrorist, saboteur, or someone who aides or abets them. Occasionally, NSA seeks Attorney General authorization to target a “U.S. person� overseas. An example of such a request would be one seeking authorization to target a terrorist overseas who is a U.S. permanent resident alien.

Executive Order 12333 Restrictions Relative to Retention and Dissemination of Unintentionally Acquired US. Person Information

NSA's collection of foreign intelligence from foreign individuals and entities is designed to minimize the incidental, or unintentional, collection of communications to, from, or about U.S. persons. When NSA does acquire information about a U.S. person, NSA's reporting does not disclose that person's identity, and NSA will only do so upon a specific request that meets the standard derived from statute5 and imposed by Executive Order regulation -- that is, the information is necessary to understand a particular piece of foreign intelligence or assess its importance. Specifically, no information, to, from, or about a U.S. person may be retained unless the information is necessary to understand a particular piece of foreign intelligence or assess its importance. Similarly, no identities of U.S. persons may be disseminated (that is, transmitted to another government department or agency) by NSA unless doing so is necessary to understand a particular piece of foreign intelligence or assess its importance. For example, if NSA intercepted a communication indicating that a terrorist was about to harm a U.S. person, the name of the U.S. person would be retained and disseminated to appropriate law enforcement officials.

Oversight of NSA's Electronic Surveillance Activities

Oversight of NSA's activities is conducted by organizations internal to NSA, external to NSA in the Executive Branch, and in the Legislative and Judicial Branches.

[--yes, oversight! what a concept! THAT'S what they wanted to stop--the oversight!]

Some historical perspective on the activities of NSA prior to 9/11. Besides complying with the 4th Amendment Rights of US persons, as guaranteed under the Constitution, there is nothing in General Hayden's testimony, which occurred 7 years ago, to indicate that there was ANYTHING stopping them from collecting information against terrorists. NOTHING.

But if you want to believe their lies, go ahead. No reasonable person can conclude they needed to change the FISA law--there was nothing stopping them from collecting information on terrorists--nothing.

-----------------------------------------------
Testimony of NSA DIRECTOR LT GEN MICHAEL V. HAYDEN, USAF

HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE

12 April 2000

The National Security Agency (NSA) performs electronic surveillance to collect foreign intelligence information for the military and policymakers. As the Director of Central Intelligence noted, NSA provides valuable intelligence to U.S. government consumers on a wide range of issues of concern to all Americans, such as international terrorism, narcotics trafficking, and proliferation of weapons of mass destruction. NSA’s electronic surveillance activities are subject to strict regulation by statute1 and Executive Order2 due to the potential intrusiveness and the implications for the privacy of U.S. persons3 of these activities. NSA’s electronic surveillance activities are also subject to oversight from multiple bodies within all three branches of the government. These safeguards have ensured that NSA is operating within its legal authority.

Background

The Seventies were a watershed for the Intelligence Community. Congressional investigating committees, led by Senator Frank Church and Congressman Otis Pike, found that government agencies, including NSA, conducted a number of improper intelligence activities directed against U.S. citizens. The revelations of these committees resulted in new rules for U.S. intelligence agencies, rules meant to inhibit abuses while preserving our intelligence capabilities. In other words, a concerted effort was made to balance the country’s need for foreign intelligence information with the need to protect core individual privacy rights.

A wide-ranging, new intelligence oversight structure was built into U.S. law. A series of laws and Executive Orders established oversight procedures and substantive limitations on intelligence activities. In the aftermath of the Church and Pike committees’ revelations, Congress passed the Foreign Intelligence Surveillance Act (FISA) which created a procedural structure with a special court for considering and approving certain surveillances that occur in the U.S. and thus have the potential to affect rights guaranteed by the Constitution. The House and Senate each established intelligence oversight committees. President Ford issued an Executive Order that established for the first time a formal system of intelligence oversight in the Executive Branch. Oversight mechanisms were established within the Department of Justice and within each intelligence agency. The President also established an independent Intelligence Oversight Board.

The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and - - through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.

Recently, NSA has been the subject of media reports which suggest that NSA collects all electronic communications, spies on U.S. citizens, and provides intelligence information to U.S. companies. There also have been claims that NSA activities are not subject to regulation or oversight. All of these claims are false or misleading. Today, I will describe NSA’s electronic surveillance authority, the framework regulating that authority for the purpose of protecting privacy rights, and the oversight mechanisms in place to monitor NSA’s activities.

NSA’s Electronic Surveillance Authority

NSA’s electronic surveillance authority is found in Executive Order 12333, entitled “Intelligence Activities.� Executive Order 12333 authorizes NSA to collect, process, and disseminate signals intelligence information for national foreign intelligence (and counterintelligence) purposes and in support of U.S. military operations.4

NSA is not authorized to collect all electronic communications. NSA is authorized to collect information only for foreign intelligence purposes and to provide it only to authorized government recipients. This means that NSA is not authorized to provide signals intelligence information to private U.S. companies and we do not do so. Legal proscriptions notwithstanding, as a practical matter, it is not technically possible to collect all electronic communications everywhere in the world on an indiscriminate basis.

Regulation of NSA’s Electronic Surveillance Authority

Electronic surveillance conducted for foreign intelligence purposes is regulated by statutory restrictions flowing from the Foreign Intelligence Surveillance Act, and restrictions flowing from Executive Order 12333, which manifest themselves in the form of restrictions applicable to all intelligence collection activities and specific restrictions (Attorney General Procedures) regulating NSA’s electronic surveillance activities.

Statutory Restriction on Electronic Surveillance in the US. -- Foreign Intelligence Surveillance Act (FISA)

Under FISA, NSA may only target communications of a U.S. person in the United States if a federal judge finds probable cause to believe that the U.S. person is an agent of a foreign power. Probable cause exists when facts and circumstances within the applicant’s knowledge and of which he/she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power. Under the statute, a judge may determine a U.S. person to be an agent of a foreign power only if there is information to support a finding that the individual is a spy, terrorist, saboteur, or someone who aids or abets them.

All FISA collection is regulated by special minimization procedures approved by the FISA Court and the Attorney General. Since the enactment of the FISA in 1978, there have been no more than a very few instances of NSA seeking FISA authorization to target a U.S. person in the United States. In those instances there was probable cause to believe that the individuals were involved in terrorism.

Executive Order 12333 - Restrictions Im-Dosed on All Intelligence Collection Activities

There are certain restrictions imposed by E.O. 12333 upon all intelligence collection activities engaged in by the Executive Branch agencies. Intelligence collection must be conducted in a manner “consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.� (Sec. 2.1). These include the Fourth Amendment’s prohibition against unreasonable searches and seizures. Intelligence collection must not be undertaken to acquire information concerning the domestic activities of U.S. persons. (Sec. 2.3(b)). The least intrusive collection techniques feasible must be used in the United States or against U.S. persons located abroad. (Sec. 2.4). Finally, agencies in the Intelligence Community are prohibited from having other parties engage in activities forbidden by the Executive Order on their behalf. (Sec. 2.12) This means that NSA can not ask another country to illegally spy on U.S. persons on our behalf, and we do not.

Executive Order 12333 Procedures - Specific Restrictions Imposed on NSA’s Collection Techniques

In delegating authority to the Director, NSA in E.O. 12333, the President recognized that certain intelligence gathering techniques, such as signals intelligence, are particularly intrusive and must be conducted in a “reasonable� manner to comport with Fourth Amendment and statutory requirements. The Executive Order requires, therefore, that certain written procedures be implemented regulating such techniques. The procedures are designed to protect constitutional and other legal rights and limit the use of information collected to lawful governmental purposes. The Executive Order requires that the head of the agency (i.e., for NSA, the Secretary of Defense) and the Attorney General approve the procedures.

NSA has such procedures in place. They have been approved by the Secretary of Defense and the Attorney General. They are classified and are appended to DoD Directive 5240.1-R, the DoD regulation which implements E.O. 12333. Prior to implementing or revising these procedures, NSA provides them to the House and Senate intelligence committees, to the Assistant to the Secretary of Defense for Intelligence Oversight and the Intelligence Oversight Board of the President’s Foreign Intelligence Advisory Board. The procedures are incorporated into an NSA Regulation and the substance of the procedures is promulgated throughout the signals intelligence system in a detailed directive, U.S. Signals Intelligence Directive 18, signed by the Director, NSA. This Directive provides a single document in which all the restrictions, whether originating from constitutional, statutory, executive
order, or regulatory provisions, may be found.

Executive Order 12333 Restrictions on Electronic Surveillance Outside the US.

Under E.O. 12333 and implementing regulations signed by the Secretary of Defense and approved by the Attorney General, NSA must obtain the Attorney General’s approval before conducting electronic surveillance directed against a U.S. person abroad. The Attorney General must have probable cause to believe that the person is an agent of a foreign power, either an officer or employee of a foreign power, or a spy, terrorist, saboteur, or someone who aides or abets them. Occasionally, NSA seeks Attorney General authorization to target a “U.S. person� overseas. An example of such a request would be one seeking authorization to target a terrorist overseas who is a U.S. permanent resident alien.

Executive Order 12333 Restrictions Relative to Retention and Dissemination of Unintentionally Acquired US. Person Information

NSA's collection of foreign intelligence from foreign individuals and entities is designed to minimize the incidental, or unintentional, collection of communications to, from, or about U.S. persons. When NSA does acquire information about a U.S. person, NSA's reporting does not disclose that person's identity, and NSA will only do so upon a specific request that meets the standard derived from statute5 and imposed by Executive Order regulation -- that is, the information is necessary to understand a particular piece of foreign intelligence or assess its importance. Specifically, no information, to, from, or about a U.S. person may be retained unless the information is necessary to understand a particular piece of foreign intelligence or assess its importance. Similarly, no identities of U.S. persons may be disseminated (that is, transmitted to another government department or agency) by NSA unless doing so is necessary to understand a particular piece of foreign intelligence or assess its importance. For example, if NSA intercepted a communication indicating that a terrorist was about to harm a U.S. person, the name of the U.S. person would be retained and disseminated to appropriate law enforcement officials.

Oversight of NSA's Electronic Surveillance Activities

Oversight of NSA's activities is conducted by organizations internal to NSA, external to NSA in the Executive Branch, and in the Legislative and Judicial Branches.

[--yes, oversight! what a concept! THAT'S what they wanted to stop--the oversight!]

Yes, I know everyone has a headache. But once again, for the reading-comprehension impaired:

For example, if NSA intercepted a communication indicating that a terrorist was about to harm a U.S. person, the name of the U.S. person would be retained and disseminated to appropriate law enforcement officials.

That's the DIRNSA, Michael Hayden--who is now the Director of Central Intelligence--roughly eighteen months BEFORE the 9/11 attacks, but DURING the Clinton Administration, reassuring the American people that the NSA had the capability and the common sense understanding and the wherewithal to do whatever necessary to prevent a terrorist attack that it might uncover in its day to day operations.

Why is that important? Because the rabid Republicans of the day were convinced that the greatest threat to American civil liberties was President Clinton. So Hayden went to the Congress in April of 2000 to reassure them that there were checks on Clinton's power but that if they spotted a terrorist, they could STOP that terrorist, regardless of who they were. That's the DIRNSA telling the American people that it would notify the appropriate law enforcement agencies and entities of a terrorist plot in order to prevent it.

(and, as if this needs to be pointed out, this was Hayden's chance to reassure Republicans that Clinton wasn't getting anything on them. Ha! You can't make this up, can you?)

Now, why didn't that happen about 18 months later? Oh, wait--go back and read the August 6th PDB--they were telling the President. The problem was, they were telling the wrong President at the wrong time of the year--he was on vacation and was simply convinced someone was covering their ass.

Who was also a DIRNSA in the same time frame of Hayden's testimony? Oh, just a pathetic tool of the Bush Administration named Adm Mike McConnell. See--you can't make this shit up. They're counting on people to be complacent and confused. Sorry--ain't happening.

That's why we did not require having the 4th Amendment rights of all Americans stripped away by the recent FISA changes. The fact that they had these rules and policies in place before 9/11--and that their own imcompentence and inability to hire Arabic linguists prevented them from possibly stopping the attacks--is what they don't want you to know.

They want you to yawn and say, okay, I'll buy it, and they want you to go back to watching boobies on TV and to stop paying attention.

But they've always had the ability to stop terrorists. Always! And what they want you to do is act all scared and concerned and look the other way while they go about intimidating and marginalizing their political enemies.

Pale Rider: Excellent stuff above! If I could ask you a favor, though, could you attempt to supply citations or links, where possible, to the original sources?

I'm not expressing doubts, mind you. I'm just always eager to expand my own documentation. And you seem to have access to some truly superlative sources.

Much obliged!

http://www.fas.org/irp/congress/2000_hr/hayden.html

One of the many attacks on the Clinton Administration and how it defended civil liberties, from the CATO Institute:

http://www.cato.org/pubs/pas/pa-271.html

Excerpt--the conservative case as stated against "wiretapping" people. Bear in mind that the stripping of the FISA law now gives the Bush Administration unprecedented powers to conduct surveillance without any checks or balances:
------------------------------
The Warrant Clause

The warrant clause of the Fourth Amendment, specifying the conditions that must be met before officials may search a person's home or seize papers and effects, provides: "no [search] Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." The warrant clause protects the citizenry from arbitrary searches by requiring law enforcement personnel to obtain judicial authorization before they demand entrance to any person's home. The Supreme Court described the constitutional importance of the warrant application process in McDonald v. United States (1948).

The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. [50]

The Clinton administration has repeatedly attempted to play down the significance of the warrant clause. In fact, President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping.

Warrantless "National Security" Searches

The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [51] According to Gorelick, the president (or his attorney general) need only satisfy himself that an American is working in conjunction with a foreign power before a search can take place.

The warrant clause was designed to give the American people greater security than that afforded by the mere words of politicians. It requires the attorney general, or others, to make a showing of "probable cause" to a magistrate. The proponents of national security searches are hard-pressed to find any support for their position in the text or history of the Constitution. That is why they argue from the "inherent authority" of the Oval Office--a patently circular argument. The scope of such "authority" is of course unbounded in principle. Yet the Clinton Justice Department has said that the warrant clause is fully applicable to murder suspects but not to persons suspected of violating the export control regulations of the federal government. [52] If the Framers had wanted to insert a national security exception to the warrant clause, they would have done so. They did not.

The Clinton administration's national security exception to the warrant clause is nothing more, of course, than an unsupported assertion of power by executive branch officials. The Nixon administration relied on similar constitutional assertions in the 1970s to rationalize "black bag" break-ins to the quarters of its political opponents. [53] The Clinton White House--even after the Filegate scandal--assures Congress, the media, and the general public that it has no intention of abusing this power.

---------------------------

So, if anyone is still paying attention--conservatives were for the 4th Amendment before they were against it. So long as the President is a conservative, conservatives conveniently forget that their unhinged criticisms of the Clinton Administration reveal them to be the most blatant hypocrites known to mankind.

Pale Rider: Many thanks for both of those links.

In fairness to the apparently libertarian-leaning CATO, I note that several papers presented there relate similar criticisms of Dubya's OWN abysmal adherence to Constitutionality, though none that I perused (briefly) approached the subject with the zeal and stamina exhibited by the author of the Clinton critique you cited (which does have its merits).

Of course, making the observation that CATO itself has exhibited a degree of consistency in "fair play" on this issue extends NO viable excuse to "Conservatives" at LARGE, who've overwhelmingly manifested blind loyalty to the Bush Regime in virtually every anti-Constitutional endeavor it has undetaken. There the bald partisan HYPOCRISY, as you so rightly put it, is blindingly clear.

Well done, once again!

Small point of clarification: no statute passed by Congress can take away your Fourth Amendment rights.

Small point of clarification: no statute passed by Congress can take away your Fourth Amendment rights.

A large point of clarification--they can issue a signing statement and do whatever the fuck they want to do.

If you think they haven't been taking away your rights all along, you're the biggest fool known to man. Your rights and some high minded interpretation of a document they no longer respect or adhere to mean nothing when they can:

1. Convince a Republican US Attorney to direct the full prosecutorial power of the Federal government against you based on trumped up charges.

2. Use our intelligence agencies to invade every aspect of your life.

3. Declare you an enemy combantant and use extraordinary rendition to take you off these shores and either torture you themselves or give you over to a third party and subcontract it out.

4. Hire Blackwater security personnel to conduct law enforcement functions as deemed necessary.

5. Activate and Federalize the National Guard and institute Martial Law.

6. Ignore Habeus Corpus.

See, all these things are now the law of the land, thanks to the complacency of the American people. And yet you conclude you still have 4th Amendment Rights? Any rights at all?

You have the right to remain silent is all you have. And they're working on that, too.