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."

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. AlanDownunder says:

    A question for every Dem who voted for the FISA amendment:

    Will the newly-permissible ’intelligence’ get to Karl Rove and what will that do to your chance of re-election and/or your vulnerability to blackmail?

  2. radiofreewill says:

    What would galvanize the Goopers and the Dems into ’back room’ unity on issues like the FISA Hornswaggle?

    A clearly perceived threat with potentially devastating results.

    Let’s say, just speculating, that Putin waited until he and the Bushes are fishing and says something like, â€Comrades, das vadanski nuclear bomb lost grozny pereskaya.â€

    Or wicked germ or pestilence-like nerve agent, something like that.

    The Dems would work with the Bushies, in the face of a substantiated grave threat, to stop something along those lines. And, they would be hard-pressed to ’limit’ the search for the ’bad guys,’ even if it meant combing through ’all of us’ looking for them.

    So, we get Kabuki. Scene One has everyone on soapboxes. Adjourn to the back-room. Scene Two the Dems fall down and the Goopers win, because the ’default’ Gooper position is always ’maximum fear, minimum privacy.’

    The Dems are worried about our civil rights, but they crumble everytime when the Right plays the fear – the Terra – card. The Right doesn’t worry about its civil rights as long as they are in control.

    Nancy and Harry must believe that a ’credible’ grave threat is out there – because that FISA gutting was pure political Kabuki.