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
bmaz @adambonin Welp, for starters, about every ethical rule in criminal law was hideously broken in one show. Its too much; uncomfortably absurd
4hreplyretweetfavorite
bmaz RT @macfathom: I still find it wonderful that the NYPD's first response to anticapitalist protest is always to cage the bull: http://t.co/H
4hreplyretweetfavorite
bmaz @randiego2 @iamchrisscott @politico Say, for instance, it had been Michelle Bachmann shot by a hippy? Yeah, Politico would be 180º different
5hreplyretweetfavorite
bmaz @sockrateaser @iamchrisscott @politico Yes. But, still, this is crass even for Politico.
5hreplyretweetfavorite
bmaz RT @iamchrisscott: Hey @politico you know she was literally shot in the head, right? http://t.co/Z9JhB0XGHJ
5hreplyretweetfavorite
bmaz @BradMossEsq @robertcaruso Ima have to go back to football I think. It replays later, maybe I will pick it up again. Rough so far.
6hreplyretweetfavorite
bmaz @TyreJim @BradMossEsq @JeffreyGoldberg Now seen most of 20 minutes of it. It is terrible.
6hreplyretweetfavorite
bmaz @robertcaruso @BradMossEsq Just watched the first ten minutes of it here. It looks horrible.
6hreplyretweetfavorite
JimWhiteGNV RT @deviatar: First known lethal drone strike by Hezbollah http://t.co/U4K9lphEui
6hreplyretweetfavorite
emptywheel @Atrios Just don't put fake of those flavors in coffee, cheesecake, or air freshener, for fucks sake.
6hreplyretweetfavorite
JimWhiteGNV Got my flu vaccine today. When will you get yours?
6hreplyretweetfavorite
bmaz RT @dmataconis: I still say that the NFL should adopt the NCAA overtime rules
7hreplyretweetfavorite
August 2007
S M T W T F S
« Jul   Sep »
 1234
567891011
12131415161718
19202122232425
262728293031