TSP and FISA

Yup, still mono-focused on FISA, but mr. emptywheel is clamoring for dinner, so maybe once I step away from the computer, I’ll remember all the other things I’ve been meaning to write on.

I want to object to the way Kevin Drum is referring to the new details of FISA:

Originally, FISA allowed warrantless wiretapping of anycommunication between two foreigners. It also allowed warrantlesssurveillance of "foreign powers" (including those on U.S. soil) as longas there was no substantial likelihood that the surveillance wouldinclude conversations with U.S. persons. "Foreign powers" did notinclude terrorist groups.

Democrats and Republicans were both willing to amend FISA to allowlimited surveillance of terrorist groups, and both were willing toamend FISA to overcome technical problems that had made it difficult tomonitor certains kinds of foreign-to-foreign communications. So whatwas the disagreement? Originally I thought it was mainly about how tofix one of the technical problems: namely, given modern communicationsnetwork architecture, what procedures do you need to put in place toensure a high likelihood that U.S. persons won’t be surveilled while atthe same time allowing NSA the widest possible latitude to monitorgenuine foreign-to-foreign communications?

However, that appears not to be the case.  Rather, NSA (and the White House) were specifically looking for newauthority to monitor communications that included U.S. persons. And notjust communications related to terrorism. They wanted a free hand forwarrantless surveillance of any communication between foreigners andAmericans that was related to foreign intelligence in any way.

It’s not that Drum is, strictly speaking, wrong (though see AL’s cautions in the comments). But he’s setting a false, two-part comparison: Pre-Amendment FISA and Post-Amendment FISA, with the only thing that intervened as the Administration’s wishes to "modernize" FISA.

This comes, I think, out of the Administration’s head-fake, which consisted of naming a small part of the warrantless wireless program the "Terrorist Surveillance Program," which (when we entered into this most recent debate) the Administration claimed it wanted to legalize. Bush affirmed, on repeated occasions, that the "TSP" only consisted of taps that the Administration could ensure were targeted to those with ties to Al Qaeda. And it only consisted of taps for which one of the parties was outside of the country.

But we know the whole "TSP" thing was just a head-fake. While that is all Bush admitted to, we know there are several other aspects the warrantless wiretap program included. These are, at a minimum:

  1. The tapping of communication that the Administration can’t guarantee involves one party outside of the United States
  2. The tapping of communication for which the Al Qaeda tie is tenuous at best
  3. The use of data-mining to select the targets of interest
  4. The collection of the PEN data from a huge chunk of the communications passing through our country’s telecom networks

Drum suggests that the Administration wasn’t asking for 1 and 2–that those things just got thrown into the pot at the last minute. Well, perhaps not in so many words. But that is, in fact, the program the Administration was trying to make legal, so the mistake or confusion arises solely because we treated this debate as one strictly about modernization. Had we treated this debate as one about legalizing the Administration’s illegal program, including those aspects that Bush never admitted but we knew were included anyway, those two items would clearly have figured prominently on the list. (Though it’s unclear whether the Administration’s broad use of "Foreign Intelligence" to describe the target of the taps is designed solely to authorize tapping people whose ties to Al Qaeda are tenuous, or, more likely, whether they want to include intelligence of all stripes, presumably including international industrial intelligence.)

As to the last two, those are the elements that I suggest we really scrutinize this law for. AL suggests, in the comment linked above, that they may have, in fact, thrown in a thin legalization of the data-mining by treating that as surveillance that "concerns" foreign intelligence. Perhaps.

The point is, though, not to let Bush’s Orwellian TSP head-fake continue its power. It was never just about tapping Al Qaeda. Treating it as such simply buys the BushCo line about "TSP."

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

0 Responses to TSP and FISA

  • 1
  • 2
  • 3
  • 4
Emptywheel Twitterverse
emptywheel RT @NadiaKayyali: I'm so proud of my colleague @maassive for continuing to expose ridiculous barriers to communication inmates face. https:…
1mreplyretweetfavorite
bmaz @emptywheel @ryanjreilly I wonder if federal employee rights came into play in determining the disposition and punishment.
1hreplyretweetfavorite
bmaz @emptywheel @ryanjreilly Yep. That is where intent comes in. Not suggesting shouldnt have been more punishment honestly just asking question
1hreplyretweetfavorite
JimWhiteGNV All of Huckabee's denying he ever wanted to kill anybody sounds really suspicious. Do we know for SURE where he was when Vince Foster died?
1hreplyretweetfavorite
JimWhiteGNV Prediction: Pac's shoulder will take 3+ years to heal. May-Pac rematch in 2020 to be sponsored by AARP.
2hreplyretweetfavorite
emptywheel @ShawnMusgrave Yes. I'm apparently not on THAT blacklist. Yet. Now stop tweeting me before they catch on, wouldya?
2hreplyretweetfavorite
emptywheel @ShawnMusgrave Which doesn't solve the underlying issue.
2hreplyretweetfavorite
emptywheel @ShawnMusgrave God forbid you be able to check FOIA bills bc you're a nuisance.
2hreplyretweetfavorite
emptywheel @bmaz According to your theory of "DEA always does WOT crimes 1st," should be looking for "forgotten" non-US ghost detainees. @ryanjreilly
2hreplyretweetfavorite
bmaz .@ryanjreilly What occurred here is outrageous; yet, if was truly a mistake with no intent, what should the punishment be? Honest question.
2hreplyretweetfavorite
bmaz RT @ggreenwald: NEW: How the NSA converts spoken words into searchable texts - that can be stored & searched forever https://t.co/rYvmpEEe
2hreplyretweetfavorite
emptywheel @selfagency Spouse is Irish, where that is also used, with a fairly light accent. It has taken some training.
2hreplyretweetfavorite
August 2007
S M T W T F S
« Jul   Sep »
 1234
567891011
12131415161718
19202122232425
262728293031