Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

June 22, 2008
By: Kevin Drum

THE FISA COMPROMISE....The aspect of the FISA compromise that's gotten the most attention is its grant of retroactive immunity to the telephone companies that cooperated with the NSA's post-9/11 domestic spying program. Like everyone else in the liberal blogosphere, I think retroactive immunity is a bad idea that sets a bad precedent, but as I've mentioned before, this isn't a hill I'm willing to die defending. Sure, the telcos may have made the wrong call, but they were caught in a genuinely tough bind in the days after 9/11. The real bad guys here are George Bush and his enablers, who refused to go to Congress after the immediate post-9/11 emergency was over and get legislative approval for the NSA surveillance program.

For my money, then, telecom immunity is a little bit of a sideshow. The rest of the bill matters a lot more. So what's in it?

For starters, the most positive aspect of the bill is that it make clear that FISA and the criminal wiretap laws are the exclusive means by which electronic surveillance may be conducted. It's true that the old FISA bill says the same thing, and in any case it wouldn't surprise me if Bush issued a signing statement saying he disagrees with this section, but still, at least it's something.

However, there are also several negative aspects of the bill aside from telecom immunity, and two of them stand out to me. First, the old FISA allowed NSA to conduct a wiretap for up to 72 hours while waiting for FISA approval. The new bill extends this to a week, allows the surveillance to continue during appeals, and permits the government to use any of the information it collects even if the FISA court eventually rules that the tap is unlawful. This pretty obviously opens the door to some fairly serious abuse in the future.

Second, and more fundamentally, the bill gives wholesale approval for NSA to conduct bulk monitoring of electronic communications (primarily email and phone calls). This is the issue that catapulted FISA into prominence in the first place, and it's getting surprisingly little attention this time around. As near as I can tell, this is because bulk monitoring is now widely accepted on both sides of the aisle. For example, in his interview with Jake Tapper last week, Barack Obama made a point of correcting him on this score:

TAPPER: There has not been a terrorist attack within the U.S. since 9/11. And [the Bush administration says] the reason that is, is because of the domestic programs, many of which you opposed, the NSA surveillance program, Guantanamo Bay, and other programs. How do you know that they're wrong? It's not possible that they're right?

OBAMA: Well, keep in mind I haven't opposed, for example, the national security surveillance program, the NSA program. What I've said that we can do it within the constraints of our civil liberties and our Constitution.

At this point we have to engage in a bit of guesswork since the details of the NSA program are classified, but the basic problem is the same as it's always been: NSA's program isn't targeted at particular people or even particular organizations. Nor is it targeted solely at foreign-to-foreign communications since modern communications technology makes it very difficult to be sure where a particular message originates or terminates. Rather, it's based on complex computer algorithms, something that's genuinely uncharted territory.

To repeat something I said a couple of years ago, the nice thing about probable cause and reasonable suspicion and other similar phrases is that they have a long history behind them. There are hundreds of years of statutory definition and case law that define what they mean, and human judges interpret them in ways that most of us understand, even if we disagree about which standard ought to be used for issuing different kinds of wiretap warrants.

But the NSA's domestic spying program doesn't rely on the ordinary human understanding of these phrases. Instead, it appears to rely primarily on software algorithms that determine whether or not a person is acting in a way that merits eavesdropping. The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that.

Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you're really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant.

Is this useful? Maybe. But we're not listening in on al-Qaeda's phone calls to America. We're tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn't require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns:

  • The algorithms that determine NSA's profiles are almost certainly extremely complex and technical — far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA's computer programmers?

  • What happens to the information that's collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever?

  • Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy?

  • Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they're started with the best intentions, always get abused eventually.

The oversight on this stuff is inherently weak. After all, no court can seriously evaluate algorithms like this and neither can Congress. They don't have the technical chops. Do the algorithms use ethnic background as one of their parameters? Membership in suspect organizations? Associations with foreigners? Residence in specific neighborhoods? Nobody knows, and no layman can know, because these things most likely emerge from other parameters rather than being used as direct inputs to the algorithm.

For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands. The new bill requires annual review by Inspectors General of the government's compliance with targeting and minimization procedures, which is better than nothing, but stronger amendments aimed at limiting the targeting of U.S. citizens were specifically rejected. See David Kris here for more.

In the end, everyone seems to have decided that bulk monitoring of electronic communications is OK, and that the new bill provides adequate oversight and minimization procedures. I'm not so sure myself, since I don't trust procedures like this to stay robust. In any case, I'd say this is the core issue, not telecom immunity, and it deserves more attention. Unfortunately, it doesn't look like it's going to get it.

Kevin Drum 2:37 PM Permalink | Trackbacks | Comments (73)

Bookmark and Share
 
Comments

"There has not been a terrorist attack within the U.S. since 9/11."

Anthrax? And hello -- thousands of Americans killed and tens of thousands maimed, and trillions down the toilet? C'mon!

This is all such illegal utter bullshit that it sickens me that we have to be "reasonable" and discuss it and give the benefit of the doubt. Some things are just fucking illegal, wrong, immoral.

I'll give BushCo this -- they know that no matter what they do (other than getting a blowjob), their criminal actions will be treated with respect, given a "fair hearing," etc.

Posted by: John McCain: More of the Same on June 22, 2008 at 2:53 PM | PERMALINK

Interesting information, Kevin. I focused solely on the immunity battle in this bill, but I didn't even know about the provisions like these. In particular, the ability to use any information collected during a surveillance even if a court later rules it out of line is very troubling. Thanks for bringing this to our attention. Unfortunately, with even a Democratic Congress apparently willing to go along with the continued strengthening of the unitary executive, the prospects of anything getting done about this seem to be limited.

Posted by: Steve W. on June 22, 2008 at 3:14 PM | PERMALINK

I don't support this type of surveillance, but at the same time I am having a hard time getting too vexed about it, which is probably a bad thing. It seems we are slowing losing, and in other cases, relinquishing, our privacy.

I was shocked to find out, while reading a story about Kwame Kilpatrick, that text messages were recorded and could be supeonaed. At the same time, everyone i know, even tangentially, knows what i had for dinner last night (Twitter) and that I'm going to be living abroad for a few months (Facebook).

So yes, this type of power in the government's hand can be quite destructive and intrusive, as I found out after ending up on a watch list because of the language I decided to study in college. But the line between the type of information we give up freely and the type of information we should guard with our lives, seems to be a bit muddy these days. I hope we'll find a balance, which in turn should make arguing against infringements on our civil liberties far less complex.

Posted by: enozinho on June 22, 2008 at 3:15 PM | PERMALINK

but they were caught in a genuinely tough bind in the days after 9/11.
You do remember, Kevin, that it's been found that the spying (by AT&T and MCI at least) was going on several months prior to 9/11? Or have you forgotten that, too, because people keep repeating the talking point (similar to the above comment about how everyone forgets about anthrax)?

Posted by: SP on June 22, 2008 at 3:16 PM | PERMALINK

Who would have thunk that when Obama said, "Yes we can" he was referring to the continuation of the bush criminal cabal and the final destruction of US democracy.

Bastard.

Posted by: Mark With the Tiny Pencil on June 22, 2008 at 3:16 PM | PERMALINK

Well it is fairly obvious that the main target of these programs are political opponents no matter where they reside and which nation state they are citizens of. The terror shading is just a cover for one group of sleezy (gangster ?) frat rats to "rat f*ck" people they don`t like irrespective of the reasons.

Maybe what needs to be done is designate at least one day a week as "Call Osama Day" where everyone calls one of those areas where "the evil brown people" are living and clog up the NSA data bases w/too much raw data so as to bring this thing to a screechin halt. No matter how much digital storage & bandwidth they may have access to there is a limit as to exactly how much data can be delt with. Historical use of wooden shoes comes to mind as a metaphor.

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." - H. L. Mencken

Posted by: daCascadian on June 22, 2008 at 3:23 PM | PERMALINK

The new surveillance powers will be used to mostly monitor political dissidents and politicians.

Posted by: Brojo on June 22, 2008 at 3:24 PM | PERMALINK

This is too technocratic and esoteric. Kevin is obviously fascinated by software algorithms and their applicability to the problem at hand as well as their accuracy, but too many trees are lost in this forest of data mining. It's like discussing the advisability of human cloning on the basis of the details of biochemistry of the human genome.

I think that is best to be a luddite on this score and just base the argument on the simple principle that a government in a democracy should not be spying on its citizens.

Posted by: gregor on June 22, 2008 at 3:30 PM | PERMALINK

Any possibility that Democratic politicians were caught up the sweep? With their Internet surfing habits now in Karl Rove's hands? Hmmm...

And yes, Kevin has forgotten both the anthrax attacks and that the illegal spying started before 9/11. And of course no one remembers that when the CIA _did_ report to President George W. Bush that al Quida was preparing to strike in the US, BEFORE 9/11, Bush thanked them for covering their asses and ignored the report. Lotta factors there; lotta factors.

Cranky

Posted by: Cranky Observer on June 22, 2008 at 3:36 PM | PERMALINK

Dissidents!? Don't you worry Brojo. The NSA (and anyone else who has seen one of your overly-dramatic nonsensical screeds) couldn't give a rats ass what you are doing. Feel free to prattle on, secure in the knowledge that no one --- and I mean NO ONE -- is listening.

Posted by: Pat on June 22, 2008 at 3:38 PM | PERMALINK

Telecom immunity is important because it will be used to short circuit the discovery process. Nobody really cares about the money. It's the facts that are being buried.

Posted by: jimbo on June 22, 2008 at 3:40 PM | PERMALINK

I claim that if seven years of extensive surveillance had brought to light even one serious plot to attack the US, the Bush Administration would have trumpeted that foiled attack to the skies. Averting such an attack would have provided concrete justification for the most extreme of their policies. It would have been political gold.

Instead, we've seen the PR machinery roll into play to publicise what? One bunch of kids who were playing at talking about being terrorists and wanted uniforms and boots and help from the informant mole who busted them. Another bunch of not-even-amateurs with a vague and unworkable idea that they could combine liquids to produce an explosive.

Bupkis. They wiretapped the entire nation for seven years, yet found and averted no serious threats, not even anything semi-serious.

But the Bushies (read: Rove) must have found something exceedingly useful politically, something so potentially toxic to the political careers of Speaker Pelosi and Majority Leader Hoyer and to Rahm Emmanuel and to Senate Majority Leader Reid that those leading Democrats considered it a life-and-death issue to prevent it from coming to light. And that's why passing retroactive telecom immunity in this session of Congress was of paramount importance. By their actions ye shall know them.

Posted by: joel hanes on June 22, 2008 at 3:45 PM | PERMALINK

... the bill gives wholesale approval to bulk monitoring of electronic communications (primarily email and phone calls). This is the issue that catapulted FISA into prominence in the first place, and it's getting surprisingly little attention this time around.

Bingo. It's nothing short of obscene that something so controversial and so ambiguous is getting so little discussion. This doesn't merely chip away at Fourth Amendment protections -- it drives a spike right through the center of them for all the reasons you list. The fact that the government can, through a potentially never-ending appeals process, continue with spying that the courts have determined is illegal makes an absolute mockery of the entire court procedure in the first place. The whole thing is nothing but a sham.

And I'm still waiting for somebody to offer a credible explanation as to what was wrong with what we're now calling "the old FISA." Nobody has ever indicated why the 72 hour window was insufficient.

This kind of overreaching and invasion of constitutionally guaranteed privacy would be no less odious under an Obama administration then it will be under the Bush administration. Frankly, I expected so much more from a Constitutional law scholar. This doesn't change my vote in November -- I don't think anything could -- but I've already made it very clear to the Obama campaign that they've received my last contribution. This morning I began my new habit of sending that money to the ACLU.

Posted by: junebug on June 22, 2008 at 3:45 PM | PERMALINK

It's very possible to transact on the internet in completely anonymous ways.

These terrorists are engineers and scientists, not idiots. They can encrypt their internet access.

Posted by: absent observer on June 22, 2008 at 3:49 PM | PERMALINK

"After all, no court can seriously evaluate algorithms like this and neither can Congress."

I disagree with this statement. Computer algorithms can be expressed in the English language, even if complex. And I doubt that they're overwhelmingly complex. The problem is whether Congress critters would be critical of too broad a net and whether they would be given accurate info in the first place. I agree with Brojo, that if political dissenters aren't being targeted now, it won't be long before this will happen. I personally know one 10th grader who was met at his school by the FBI for having made an assassination remark about Bush on an internet forum. In a way it's a relief that government manpower is being 'wasted' trying to run down every teenager with a bad mouth, but who knows what damage this 'security report' will have on this young man's future. All of this crap also ignores the use of code in e-mail or telephone calls. If I were a terrorist I'd hardly be speaking literally about plans in e-mail or on the phone, knowing what I know now. If it's just a matter of 'counting' the number of calls made between a group of people, then the complex algorithms aren't needed. It doesn't even make sense on its own merits.

Posted by: nepeta on June 22, 2008 at 3:50 PM | PERMALINK

Telecom immunity is important because it will be used to short circuit the discovery process. Nobody really cares about the money. It's the facts that are being buried.

jimbo is exactly right. Nobody gives two shits about the telephone companies here. It's not a telecom immunity provision -- it's a Bush administration immunity provision.

Posted by: junebug on June 22, 2008 at 3:53 PM | PERMALINK

Jimbo is right. The only reason for the telecom immunity provision is to cover Bush's ass. Bushco broke the law, and the only way we're going to be able to hold him accountable is through the legal process. Unfortunately, the telecom industry's purchase of this immunity provision is just another way for Bush to bypass accountability.

Moreover, once telecom immunity passes, there's no going back. Unlike the other provisios in the bill, the telecom immunity provision can't be revoked once it's signed into law. It becomes a permanent get-out-of-jail-free card for Bush and crew.

Posted by: Cello on June 22, 2008 at 3:53 PM | PERMALINK

I think this would be a good time to run government like a business, and demand a cost-benefit analysis on this piece of crap. My guess is that we would save vastly more lives with mandatory flu shots, a vigorous program of patriotic national handwashing, and an aggressively advertised program of free prenatal care for all expectant mothers.

Posted by: dr2chase on June 22, 2008 at 3:58 PM | PERMALINK

For example, my internet connection to this blog is currently being split into a million little non-sense pieces (so the NSA can't tell what's going on) and those pieces are being recombined on some stranger's computer in God-Knows-Where, and then sent to this blog post over normal internet communication (which the NSA can read).

By using Tor, I can easily disguise anything I wish to say or hear online. The NSA will think this random guy in Luxembourg is making any transaction that I am making.

I'm sure the terrorists are aware of this and other neat technology.

(For the curious, Kevin can attest that the IP i'm currently using is not my actual IP which I regularly use.)

Posted by: absent observer on June 22, 2008 at 3:58 PM | PERMALINK

" but I've already made it very clear to the Obama campaign that they've received my last contribution. This morning I began my new habit of sending that money to the ACLU."

Thanks, Junebug, excellent idea. I have an Obama pledge envelope waiting to be sent in with a check. Instead of a check they'll get a note about why I'm not contributing.

Posted by: nepeta on June 22, 2008 at 4:01 PM | PERMALINK

One problem with the telecom giveaway is that the did it for years.

If a government agent came to you and says "this is an emergency, I'm borrowing your car"--ok, for the first few hours. After a day, shouldn't you go back and say "Now that we've got perspective, let's review this."?

Ultimately it comes down to this:
when a government agent/ agency makes a request, either the company legal department decides, or a federal judge decides. That's it.

I don't particularly feel like the legal department at Comcast, Verizon, or AT&T should be the ones deciding if a government request is Constitutional. Do you?

Posted by: Kady in California on June 22, 2008 at 4:05 PM | PERMALINK

Probably using an encryption tool will make your communications even more interesting to the NSA.

Posted by: Brojo on June 22, 2008 at 4:05 PM | PERMALINK

"Complex algorithms" creates the impression that this is not understandable, when in fact the main thrust of it is quite simple, i.e. social network analysis.

What this basically means is that NSA/FBI/CIA they are watching who everybody (including you) is talking to, and then building a graph of relationships and frequency of communications between everyone. This allows them to identify leaders/center nodes of communication of groups of individuals and to correlate by date/loc'n/time to spot potential interesting activity.

The problem here is that the bill provides no limit on what is "interesting". Of course communications with "known terrorists" is interesting, but since you called the Iranian guy at work about a deal you were working on several times on cell last month, now you're an associate of an associate of a "known" (i.e. info from a "bad guy" who was tortured until he named anyone who came to mind as a terrorist) bad guy and therefore a potential terrorist. God forbid you unknowingly happen to regularly go to the same Starbucks on Thursday afternoons where a group of "them" also happen to get together after work.

More dangerously, just as interesting potentially is your political affiliations, which can be easily spotted by your communications with like-minded friends or "dangerous" anti-war activists, and which certainly will be checked should you apply for a job with a company that does gov't business. In fact they might even be interested in where you drive (trackable via cell phone GPS)

All of us now need to be much more careful who we choose to talk/associate with, since you could easily wind up on blacklist of untouchables who might compromise our employability, travel privileges/hassle factor, or even insurance rates.

This country is diseased.

Posted by: quietpc3400 on June 22, 2008 at 4:08 PM | PERMALINK

The issue with data mining has always been that it's not likely to work very well. The situations where data mining is most applicable are those where there's a huge sample to analyze, like in how gmail determines what kind of advertising to display. The number of people who are bonafide terrorists, on the other hand, is really, really small. Getting meaningful data from that is likely to be pretty difficult. And further, you're going to have to wade through tons and tons of false positives. And if there isn't a sufficient method of stopping abuse, that's a really bad thing.

This is yet another reminder that Obama, unfortunately, isn't Feingold. Still incomparably better than John "habeas corpus is the worst idea EVARR" McCain, 'course.

Posted by: Omar on June 22, 2008 at 4:16 PM | PERMALINK

IMPEACHMENT WOULD DESTROY ANY TALK OF IMUNITY. Call Nancy Pelosi @`1-202-225-0100 and DEMAND IMPEACHMENT. Investigations would brand Bush as a criminal and paint the same face on the telecoms or anyone asking for immunity. (guilt by association, right or wrong)

Posted by: Mike Meyer on June 22, 2008 at 4:22 PM | PERMALINK

All of us now need to be much more careful who we choose to talk/associate with...

Even if the new surveillance powers are not used to monitor citizens communications, mission accomplished.

Posted by: Brojo on June 22, 2008 at 4:23 PM | PERMALINK

SP & Cranky: No, I haven't forgotten that the illegal spying may have started before 9/11. However, the retroactive immunity in this bill covers only the period after 9/11. Anything before that is still subject to civil action.

Posted by: Kevin Drum on June 22, 2008 at 4:24 PM | PERMALINK

I guess I don't really care about this. I've already had my bank account frozen by the feds three times because of 'suspicious' foreign wire transfers. It is impossible to believe the government isn't already monitoring all of my communications, many of which are foreign. All this law does is put the rest of you in my situation. That's actually good for me because the government will put itself in a situation where they gather so much information that they won't have the resources to analyze it. In the end, the government will probably monitor me less than they do now. I do, however, agree that this is a bad law.

Posted by: fostert on June 22, 2008 at 4:35 PM | PERMALINK

If recording can continue during appeals; and if the recording can still be used after a judge says no; what's the point of the court in this instance?

Posted by: Crissa on June 22, 2008 at 4:39 PM | PERMALINK

If recording can continue during appeals; and if the recording can still be used after a judge says no; what's the point of the court in this instance?

To provide the illusion that there's a check on presidential powers. Welcome to the unitary executive.

Posted by: junebug on June 22, 2008 at 4:48 PM | PERMALINK

I am more concerned that Mrs.Pelosi removed the provision requiring geogey porgey to ask??? to bomb Iran.
Who gave pelosi the rank of " Decoder " sound familiar ?

Posted by: islander on June 22, 2008 at 4:50 PM | PERMALINK

"There has not been a terrorist attack within the U.S. since 9/11."

Shouldn't Tapper be asking how many attempted attacks have been stopped? No attacks can mean either none attempted or all attempts stopped, those are two very different things.

Posted by: Fred F. on June 22, 2008 at 5:02 PM | PERMALINK

Of course it's not just foreign-domestic (and conversely) communications that are being monitored. There's a massive dragnet monitoring all sorts of stuff, including domestic-domestic communications (and part of this is why we see mysterious extra rooms ( http://www.wired.com/science/discoveries/news/2006/04/70619 ) ).


Posted by: MattD on June 22, 2008 at 5:34 PM | PERMALINK

In any case, I'd say this is the core issue, not telecom immunity, and it deserves more attention.

As has been noted many times in this and all threads attached to your posts on this subject, without the telecom litigation proceeding, we shall have no clear idea what exactly the Bush administration has been doing in this area. It's rather pointless to talk about the "core issue" while dismissing as impractical or unnecessary the only possible means of discovering the scope and parameters of governmental actions attached to that issue.

To provide the illusion that there's a check on presidential powers. Welcome to the unitary executive.

And what is most painful and absolutely enraging in Obama's statement on this bill is what can only be characterized as flat-out lies--and this Constitutional law professor knows they're lies--designed to further that illusion:

"...the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future."

Posted by: shortstop on June 22, 2008 at 6:42 PM | PERMALINK

The bill will protect the civil liberties of Americans and continue to require individualized warrants to intercept the content of communications for anyone in the United States or American citizens anywhere in the world. It will also allow our intelligence agencies to very rapidly follow up on tips and listen to foreigners in foreign countries who are trying to kill Americans.

Posted by: majarosh on June 22, 2008 at 6:47 PM | PERMALINK

Shorter, or inarticulately phrased, Kevin Drum:

The new FISA bill has "basket warrants" and extends the "exigency" period from three days to a week, and Obama is OK with both.

Expansion on Kevin: A number of people knew of all of these provisions when the bill came out, but telecom immunity is the "sexy" issue on which to hand progressive hats.

Could be Kevin's worst post of the week for want of editing.

Posted by: SocraticGadfly on June 22, 2008 at 6:52 PM | PERMALINK

Fostert.... I'm not that optimistic about how the NSA would handle the new flood of info.

Posted by: SocraticGadfly on June 22, 2008 at 6:55 PM | PERMALINK

As you (Kevin) argue, the algorithms must be based on hunches and guesses. If we had a large amount of data on the behavior of terrorists, we could use computers to find patterns. As it is, the patterns start as a human guess. The fact that there is a huge amount of number crunching between the guess and the referral to the FBI does not make the conclusion more reliable than the original guess -- that is no good at all.

Now there is a possible good final outcome. My guess (no good at all) is that the NSA data mining has not been useful. The Bush administration can hide that fact from the public and congress, but they won't be able to hide if from possible President Obama.

I hope that, roughly a year from now, President Obama says "I conclude that warrantless wiretapping and enchanced interrogation are not only crimes but also mistakes. So I will ask Congress to re-revise FISA and the MCA etc." Now the power based on having more information will be in his hand (of course the NSA and the CIA will leak hints that he is wrong, but he will be able to say that the leaks are both criminal and misleading). That would be OK.

That is, I hope (or wish I hoped) that Obama has just decided that he is better able to fight this as President than as a senator.

On the other hand, I admit that it is more likely that he will decide that it is OK as he will just prevent abuse with executive orders and not fight in congress to reduce his own power. Thus the laws and precedents will remain as an invitation to abuse by Obama or his successors.

Not to mention that while Obama assumes that he will be President soon, Clinton assumed that she would be the nominee. To increase his chances of winning a tiny amount, he is doing things that will be very damaging if McCain wins.

Posted by: Robert Waldmann on June 22, 2008 at 6:58 PM | PERMALINK

I think retroactive immunity is a bad idea that sets a bad precedent...

Is there a viable challenge to the constitutionality of the immunity provision? Is Congress attempting to legislate away Judicial authority and pass it to the Executive? (IANAL)

Posted by: has407 on June 22, 2008 at 7:06 PM | PERMALINK

The fact that the U.S. hasn't been hit by a terrorist attack since 9/11 may solely rest on dumb luck and nothing more.

Posted by: Mazurka on June 22, 2008 at 7:47 PM | PERMALINK

There has not been a terrorist attack within the U.S. since 9/11.

At least, there hasn't been an al-Quaeda attack. Nor will there be, not until bin Laden feels the need to again goad our government into something as stupid as the Iraq invasion. Feel safer now?

Posted by: thersites on June 22, 2008 at 8:00 PM | PERMALINK

The core issue becomes immunity because that is what is keeping the broader issue from becoming public. The worst compromise is to give the telco's immunity, a better compromise is to indemnify them against damages and fines. That would in effect protect the purported economic interests of the telco's while still allowing the illegality to be pursued. It would also appear obvious that the telco's have no great desire to avoid the money inpact. Not a cent would ever come out of management pay and there will be little impact on shareholders. These are costs that can be safely passed on to customers as all competetors share (probably proportionately) in the imposition of fines and damages. So the benefit of killing the civil suits is to keep secret what is at this point still not known. This is just another way of making sure impeachment is off the table.

Posted by: YY on June 22, 2008 at 8:05 PM | PERMALINK

You're forgetting. The spying started before 9.11.

They are criminals and should be treated as such, not given a free pass because Bush prompted them.

Posted by: beentheredonethat on June 22, 2008 at 8:08 PM | PERMALINK
but as I've mentioned before, this isn't a hill I'm willing to die defending. Sure, the telcos may have made the wrong call, but they were caught in a genuinely tough bind in the days after 9/11.

Please stop with the in the “days after 9/11” meme:

Telcos became really involved after the last Anthrax letter was send, after the partiot act. after the stockmarkets reopened, the Iraq war was decided on etc etc. I am rechecking CDR`s (everyones phonebills) SWIFT and (unreported in the US) European banks but this was in the 2003 timeframe as well.

Yes Americans were scared in 2003, but in 2003 there was plenty of opportunity to change laws, have debates and involve Congress. This isn`t some quick one of help, this is lasting surveillance infrastructure on a stunning scale. There was plenty of reason and time to check with lawyers. And once they explained the problems of going along with some sort of "wartime powers" argument (Or in the case of European banks no legal argument whatsoever) there should have been a we will help, once you do this legally reply.

Congress could have debated in public, in private in the intel committees, or just slipped a new definition of “electronic surveillance” somewhere in the patriot act. But it didn`t because Bush said warrants were working just fine.

Noone thinks the white house pushed its Iraq policy down everyone throat mainly because of some sort of informed fear of an immediate attack. So why assume the Cheney/Addinton team was “in a bind” and had to make quick decisions on torture and FISA? Just how many days did KSM spend in planes and allied intelligence hands before the torture started?

look at the timelines before you say people were in a bind. They may still have felt afraid, but there was time for lawyers to think things trough and create a legal procedure if not before the order then then between the order and the execution. There was way more than time than in 24.

And the point of going after the telcos isn`t to go after the telcos, it to get the evidence to go after Addington/Gonzales/Yoo/Cheney and even Bush who for some reason don`t have to testify under oath about how they, in theory, interpret the law.

Yes Mike Hayden said that after 9/11 he toke all actions the director of the NSA has the authority to take. And since he follows the same constitution as the president everything after that was unitary executive territory. But without the telcos the scale was smaller. And no the pre-9/11 stories are just about network intrusion detection and stock fraudster Nachio used this as greymail during his trail. Illegal maybe, but not a plain NSA operation as any computer security geek will tell you.

The telcos went along because they stupidly assumed this would remain secret and they knew someone had to provide the link between the secret rooms and fort Meade. CEOs felt more important because of their Washington ties than because of the trust the American people placed in them.


Its great for someone realizes that there is no such thing as an honest algorithm without prejudices that magically pick out calls that are objectively more suspicious than average, just programmers and their definition of what suspicious is expressed in great detail.

But any datamining book will convince you its not datamining but just analysts doing a mix of large scale network analysis and traffic analysis, maybe trying to match things with financial records and current events. There is a halal meals on planes problem here. Without datasets being clearly marked terrorist/non terrorist even the best statisticians might think some things are more significant than the history of ethnic and racial profiling would allow.

Posted by: yt on June 22, 2008 at 8:14 PM | PERMALINK

A beer company run out of the whitehouse using information swept up by the telco's. That would be a change (not much).

Posted by: YY on June 22, 2008 at 8:38 PM | PERMALINK

There has not been a terrorist attack within the U.S. since 9/11.

"As all Americans know, recent weeks have brought a second wave of terrorist attacks upon our country: deadly anthrax spores sent through the U.S. Mail." -- President Bush, November 3, 2001

Posted by: croatoan on June 22, 2008 at 8:39 PM | PERMALINK

It's very possible to transact on the internet in completely anonymous ways.

These terrorists are engineers and scientists, not idiots. They can encrypt their internet access.

Which, to me, makes it even more likely that this program is aimed at domestic political opponents, not actual terrorists or spies. I doubt Harry Reid has encryption software on his home or office computer.

Like we're supposed to trust the people who can't even take three-year-olds off the terrorist watch list to carefully investigate to make sure no one is accidentally put on a terrorist watch list because of this program?

Posted by: Mnemosyne on June 22, 2008 at 9:57 PM | PERMALINK

There is a lot of misunderstanding in Kevin's post. We are not talking about "wiretapping" in the sense that most people think of - where someone puts an alligator clip on the telephone circuits in your house or apartment, puts on headphones and listens to what you say. It is "data mining" using call records.

Let me explain - Everytime you or anyone else makes a call it creates a file on the switch at the central office of your telecom, with the originating number, terminating number, length of call, time of day, etc. in certain positions on the data file. When the telecoms surrender them to the NSA or CIA, they mine this information using database retrieval software (e.g. ACL) and use certain criteria - for example; which calls originated from which countries or which area codes, which calls occurred at odd times, which calls had one short call followed by one long call in the opposite direction, etc.

These "algorithms" or data mining criteria are NOT beyond the understanding of a college-educated individual, Kevin. You are buying into the Bushies propaganda by saying that. This is clearly a 4th Amendment violation and needs to be fought tooth and nail by the Democrats in Congress even if it requires forcing a Constitutional crisis, shutting down the government, impeachment and removing Bush from office by force, if necessary.

Why are most Democrats such fucking gutless nitwits???

Posted by: The Conservative Deflator on June 22, 2008 at 10:32 PM | PERMALINK

" . . . far beyond the capability of ANY lawyer to understand," Kevin says. Seems a bit broad.

Posted by: ferd on June 22, 2008 at 10:46 PM | PERMALINK

Much of this is Bushco fabrication. First there was the necessary fiction of declaring that terrorists were everywhere--when in fact, they were pretty limited in character, and emboldened mostly by the ongoing problems with Israel and its neighbors. This fiction may have required an anthrax attack to get its point across (the best source of the anthrax attack remains the U.S. government). Second, the whole Gitmo controversy--they swept up hundreds of people, denied them any rights at all, and squirreled them away outside the U.S. to make it seem there were 1,000s of bad guys, and they were getting a lot of them (never all, mind you, that will require a lot more funding for years to come). Third, we have to suspend the Constitution because these guys are everywhere. Fourth, we need to spy on everything in case we miss something.

The reality: the NSA needs to focus on real threats, forget the neocon wet-dreams of scooping up everything and letting God--themselves--sort it out. Too much noise, not enough signal is very dangerous to our national security. Finally, the most damaging thing to all of our security is continuing to waste money and lives in Iraq. This debacle has crippled our economy, broken our military, ruined our international standing, and caused us to commit war crimes. So yeah, I guess suspending the 4th Amendment is critical to us. There will be a lot of protests soon. Kevin, sometimes you are just full of happy compromise talk. In fact, most of the time you see the glass as half uncontaminated. . .

Posted by: Sparko on June 22, 2008 at 11:22 PM | PERMALINK

Given the level of secrecy that the Bush admin
wants to cloak this whole program, Occam Razor's
suggests to that me, that it been used for
short term political ends already.

f.ex, against John Kerry's campaign HQ,
and currently, Pelosi, and Reid, et.al.

Even if the Bush admin don't have access to
the recorded individual calls, the calling patterns alone, are likely useful.

Posted by: Bones on June 22, 2008 at 11:22 PM | PERMALINK

there are no free-lance terrorists. never have been. will never be.

everything has been operation gladio ops

Posted by: albertchampion on June 22, 2008 at 11:35 PM | PERMALINK

"sex slave trafficking, and software piracy"

Errr, why exactly are these two in the same breath?

Posted by: Steve Simitzis on June 23, 2008 at 12:03 AM | PERMALINK

Has407; nope. The ex post facto provision of the constitution only blocks after the fact criminality, not getting out of jail free.

Posted by: SocraticGadfly on June 23, 2008 at 12:32 AM | PERMALINK

Washington has become adept in giving bills palatable names, like the "Patriot Act," (the Bogeyman and Anti-Freedom Act), "Comprehensive Immigration Reform" (the Make Corruption in Immigration Legal Act), the FISA Compromise (the Make the Unitary Executive and His Secret Police Activities Above the Law act).

Posted by: Luther on June 23, 2008 at 1:18 AM | PERMALINK

Shallow thinking, Kevin.

Those NSA algorithm's are useless tools to find "terrorist", they can't even be used to find bank robbers.

The proper term is Fool's Gold algorithm.

NSA is wasting their time, but they are too stupid to know it.

Ah well, Such is life.

On another note, Obama is now a DINO.

Posted by: James on June 23, 2008 at 1:19 AM | PERMALINK

Even if I were to accept your point that the poor old companies were in a "hard place" it's the fact that the immunity COULD potentially extend to BUSHCO in the very remote chance that DEMS decided to do ANYTHING about the criminal behavior they have engaged in...course I, for one, won't be holding my breath as I think there were DEMS aplenty also involved and they want their own asses covered!!! Same old, same old and it will ever be so...until all the LONG TERMERS are thrown out and replaced by folks truly interested in the PEOPLE...anyone want to take bets on when that might happen?????

Posted by: Dancer on June 23, 2008 at 8:26 AM | PERMALINK

It's pretty clear most Americans don't care if their phones are tapped by the NSA. Many assume they already are.

What we need to do, is for people to develop open source counter-measures to prevent phone tapping, or encrypt the signal or something.

Posted by: MNPundit on June 23, 2008 at 9:22 AM | PERMALINK

Good article. But this makes no sense.

"For starters, the most positive aspect of the bill is that it make clear that FISA and the criminal wiretap laws are the exclusive means by which electronic surveillance may be conducted. It's true that the old FISA bill says the same thing, and in any case it wouldn't surprise me if Bush issued a signing statement saying he disagrees with this section, but still, at least it's something."

No, actually it's less than nothing. It's a pretense at something with no effect at all. And jimbo has it dead right: "Telecom immunity is important because it will be used to short circuit the discovery process. Nobody really cares about the money. It's the facts that are being buried." That's the point of immunity, not dollar exposure.

"The new surveillance powers will be used to mostly monitor political dissidents and politicians."

Yep! Who wants to bet against their having mined the emails of Kerry '04? It would matter, too, ask Bill Belichek.

quietpc3400 is right, too ... the algorithms are mysterious only because we can't see them. If they're like most things which don't get vetted (a la publishing an academic paper out where everybody can see it), they're almost certainly riddled with errors, absurd components and, yes, program kludge's to meet (wait for it ...) quotas. Yes, I have no doubt, an outstanding, finely honed, algorithm which didn't produce enough 'leads' for enough taps would be ruined in an attempt to keep the wiretap boys busy and to be able to report up the ladder that n taps had been authorized. Never underestimate the power of idiots.

Posted by: drinkof on June 23, 2008 at 10:06 AM | PERMALINK

Here's an easy example (grossly oversimplified, so sue me).

Sweep up all the emails to and from kerry04.com. It's a lot, but not ALL that many. Figure out who the key players are, and who they correspond with. Have all those emails forwarded (through a cut-out) to your Blackberry. Voila, you're inside their heads!

Posted by: drinkof on June 23, 2008 at 10:17 AM | PERMALINK

Sure, the telcos may have made the wrong call, but they were caught in a genuinely tough bind in the days after 9/11. The real bad guys here are George Bush and his enablers, who refused to go to Congress after the immediate post-9/11 emergency was over and get legislative approval for the NSA surveillance program.

For pity's sake, Kevin, aren't you paying attention? The discovery pahse of the telco lawsuits are the last, best hope for finding out just what the hell are George Bush and his enablers actually did -- not whether they broke the law -- that's a given -- but to what extent, against whom and, perhaps most importantly, when.

Sheesh!

Posted by: Gregory on June 23, 2008 at 10:34 AM | PERMALINK

I think Kevin Drum has alot of theories, none of which Kevin really knows anything about.

That said, we're waiting on the lawyers to define the issues, and Glenn is a lawyer, Kevin is not one. This retroactive immunity WAS the only thing that would clue us into what exactly the Bush Administration was really doing, and I have my serious doubts it had anything at all to do with terrorism, and that the legal despites that are about to be dismissed have great merit and since FISA WAS suited to the task at hand, the task it was created for, Bush need only have asked so why didn't he? Kevin doesn't really know what is behind this bill and has nothing but complete and total speculations about any of it.

It's like Kevin's peak oil scenarios, whereby Kevin has NO clue whatsoever about what it is that he is talking about, never have working in the oil industry and has nothing but complete theories about what is going on in market.

It seem Kevin is the business of dis-information more than anything else, and we've already got Joe Klein for that fraud field over at TIME.


Posted by: Me-again on June 23, 2008 at 11:32 AM | PERMALINK

The real bad guys here are George Bush and his enablers, who refused to go to Congress

Wait. I thought Congress was Bush's enablers.

Posted by: ckelly on June 23, 2008 at 11:45 AM | PERMALINK

Sure, the telcos may have made the wrong call, but they were caught in a genuinely tough bind in the days after 9/11.

You don't think that the telcos have good lawyers who could have explained the straightforward language of FISA to the corporate suits?

and

For starters, the most positive aspect of the bill is that it make clear that FISA and the criminal wiretap laws are the exclusive means by which electronic surveillance may be conducted. It's true that the old FISA bill says the same thing, and in any case it wouldn't surprise me if Bush issued a signing statement saying he disagrees with this section, but still, at least it's something.

You are a really cheap lay.

Posted by: Bolek on June 23, 2008 at 4:37 PM | PERMALINK
In the end, everyone seems to have decided that bulk monitoring of electronic communications is OK

For very select values of "everyone".

Posted by: cmdicely on June 23, 2008 at 4:42 PM | PERMALINK

think the actual "wiretapping" is the minor part of what they are trying to keep from the light of day. The TIA program (courtesy of the felonous Poindexter) was about data mining. Today's technology has been able to take this to a whole new level.

Look at what happens on many commercial sites. You get offers from Amazon based on your past purchase patterns and their correlation to people with similar purchase patterns. Your offers of insurance and loan products are based on patterns. FICA is pattern recognition which then correlates your ability to pay, and therefore the rates you get, to similar patterns using large quantities of data. I know we do this, because I work in the IT world where it is done all the time.

Not much of a strech to see how adding inbound/outbound phone usage patterns could be combined with other credit history, tax records, law enforcement data, etc. to "profile" thousands of potential targets on the fly. The call content for large numbers of targets could then be saved and analyzed in detail at after the fact.

The idea that numbers of unknown individuals may be recorded based on just a pattern probably would make it difficult to get a warrant. FISA was aimed at individuals. This new "wiretapping" is probably about gathering data from large groups of people based only on similarities in patterns. I doubt pattern matching would get authorized by the FISA court. But then again, I am not an attorney. I am just an old IT guy.

Posted by: ChiTech on June 23, 2008 at 6:23 PM | PERMALINK

Perceived complexity is more often a symptom of misunderstanding than a cause. The main misunderstanding has to do with the prevalence of terrorists in the US. Say there is a 99% accurate test for telling who is a terrorist, and this test is applied to every phone call in the country, which is what the data mining fantasists actually want. What are the odds that someone testing positive on the terrorist test is Al Qaeda? If we say there are 250,000,000 adults in the US who use telephones, and two 9/11 size terrorist squads (~50 guys), the odds that a given positive test is an actual terrorist is 1:50,000. Or, if there are only 2 ringleaders conducting communications, for which we have precedent, the odds are 1:1,250,000. That is for a 99% accurate test. But in fact we would be insanely lucky for any dumb algorithm to do better than... actually, there is no basis for even evaluating, since there is absolutely no body of data to build the profile we are looking for.

Posted by: Timon on June 23, 2008 at 7:52 PM | PERMALINK

http://ghjejrpyupyuptlhy.com ghjejrpyupyuptlhy

Posted by: r5s0e29f8agjofrrn on July 12, 2008 at 10:44 AM | PERMALINK

http://ghjejrpyupyuptlhy.com ghjejrpyupyuptlhy

Posted by: r5s0e29f8agjofrrn on July 12, 2008 at 10:44 AM | PERMALINK

http://ghjejrpyupyuptlhy.com ghjejrpyupyuptlhy

Posted by: r5s0e29f8agjofrrn on July 12, 2008 at 10:44 AM | PERMALINK

http://ghjejrpyupyuptlhy.com ghjejrpyupyuptlhy

Posted by: r5s0e29f8agjofrrn on July 12, 2008 at 10:44 AM | PERMALINK

http://ghjejrpyupyuptlhy.com ghjejrpyupyuptlhy

Posted by: r5s0e29f8agjofrrn on July 12, 2008 at 10:44 AM | PERMALINK

great, usefull 0_0

Posted by: jamili on August 8, 2008 at 2:34 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly