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."

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bmaz @GregLBean Greg, have you been having any issues getting into Emptywheel blog? We have noticed activity, not sure it is you. Thanks.
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JimWhiteGNV Today would be a very good day to leak the entire Senate Torture Report. Not just the summary, the whole damn thing...
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bmaz @benjaminwittes @csoghoian @lawfareblog Hey, if Emptywheel can do it, you can too.
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bmaz @kdrum Been hoping for the best. Good weekend of football for you to lay around and watch.
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bmaz @benjaminwittes @csoghoian Gotta say, @emptywheel is not a whiskey girl, she is really a beer lady. I am the whiskey/bourbon one.
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bmaz @steve_vladeck @emptywheel By the way, I don't like Brehm. But it strikes both it+Ali presenter abetter cases than Hamidullan appears to.
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emptywheel I think the Lions just saved $5,000 in airfare to London. Maybe they can put that to paying off people's H2O bills? https://t.co/Jq6aG7yZ47
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bmaz @steve_vladeck @emptywheel Like I said, I used (perhaps too loosely) that as shorthand for the entire process.
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bmaz @steve_vladeck @emptywheel Should US soldiers have the same exposure in all foreign jurisdictions, or are we just exceptional that way?
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emptywheel @benjaminwittes Except I don't drink whiskey. I wonder if @ageis drinks whiskey? @csoghoian
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bmaz @steve_vladeck @emptywheel Doesn't it trouble you that the US criminal code+procedure is going to cover the stated "battlefield" acts?
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