McConnell and Mukasey Tell Half Truths

One benefit of the process the Senate is using to develop a FISA bill is that, by rejecting the SJC bill then considering amendment after amendment that had been part of the SJC bill, we begin to learn what the government really plans to do with its wiretapping program, as distinct from what it has said it was doing (see Ryan Singel making the same point).

Recall that the administration has claimed, repeatedly, that its only goal with amending FISA is to make sure it can continue to wiretap overseas, even if that communication passed through the US. We always knew that claim was a lie, but the letter from McConnell and Mukasey finally makes that clear. Even still, they’re rebutting Feingold’s amendments–which they say “undermine significantly the core authorities” of the bill–with a bunch of misrepresentations about them, to avoid telling two basic truths (which Whitehouse and Feingold have said repeatedly, but which the Administration refuses to admit).

  • They’re spying on Americans and refuse to stop
  • They intend to keep spying on Americans even if the FISA Court tells them they’re doing so improperly

As I explained, the letter includes a list of amendments that, if they were passed, would spark a veto. Those include three Feingold amendments:

  • 3979: segregating information collected on US persons
  • 3913: prohibiting reverse targeting
  • 3915: prohibiting the use of information collected improperly

All three of these amendments share one overall purpose–they limit the way the government uses this “foreign surveillance” to spy on Americans.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

And then, they misrepresent Feingold’s amendment:

It has never been the case that the mere fact that a person overseas happens to communicate with an American triggers a need for court approval. Indeed, if court approval were mandated in such circumstances, there would be grave operational consequences for the intelligence community’s efforts to collect foreign intelligence.

Of course, Feingold’s amendment doesn’t require court approval, it just requires that the IC segregate out information known to be US person data.

Their opposition to Feingold’s reverse targeting amendment is even more dishonest. First, they say that reverse targeting is already prohibited by the bill.

…would require an order from the Foreign Intelligence Surveillance Court (FISA Court) if a “significant purpose” of an acquisition targeting a person abroad is to acquire the communications of a specific person reasonably believed to be in the United States. If the concern driving this proposal is so-called “reverse targeting”–circumstances in which the Government would conduct surveillance of a person overseas when the Government’s actual target is a person in the United States with whom the person overseas is communicating–that situation is already addressed in FISA today.

Note how they’ve turned the language describing “a significant purpose” into language describing the sole purpose–that is, they’ve suggested that the existing FISA bill already prohibits the collection of communications if the primary purpose is collecting communications from someone in the US. But Feingold’s amendment prohibits collecting such communication if one–out of several–purposes is to collection communication from someone in the US.

There’s a reason they’ve played that word game. That’s because, as they make crystal clear, “a significant purpose” of this bill is indeed to collect the communications of those in the US.

To be clear, a “significant purpose” of intelligence community activities that target individuals outside the United States is to detect communications that may provide warning of homeland attacks, including communications between a terrorist overseas and associates in the United States.

That is, one of the main purposes is to collect communications in the United States.

Now I might almost be sympathetic with their point here, if they were at least more honest that that was what they were doing. But then I remember that they wiretapped author Lawrence Wright, and it becomes clear that they’re already going far beyond listening to terrorists speak to associates within the United States.

Then finally, there’s the Mukasey-McConnell response to Feingold’s amendment prohibiting the use of US person information collected improperly. The response to this amendment is so disingenuous that it pays to read the amendment:

(i) IN GENERAL.–If the Court finds that a certification required by subsection (f) does not contain all of the required elements, or that the procedures required by subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government’s election and to the extent required by the Court’s order–

“(I) correct any deficiency identified by the Court’s order not later than 30 days after the date the Court issues the order; or

“(II) cease the acquisition authorized under subsection (a).

“(ii) LIMITATION ON USE OF INFORMATION.–

“(I) IN GENERAL.–Except as provided in subclause (II), no information obtained or evidence derived from an acquisition under clause (i)(I) concerning any United States person shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

“(II) EXCEPTION.–If the Government corrects any deficiency identified by the Court’s order under clause (i), the Court may permit the use or disclosure of information acquired before the date of the correction pursuant to such minimization procedures as the Court shall establish for purposes of this clause.

Basically, this amendment just says that if the government collects information under a program FISC finds to be inadequate either as regards targeting or minimization, and after it has had 30 days to fix those problems, then it cannot use that data. The amendment says the government cannot use information they’ve collected after failing to respond to a FISC requirement to fix it.

This is the same amendment about which Jello Jay complained would require the IC to lose too much information. The Mukasey-McConnell response is almost as silly.

The proposed amendment would impose significant new restrictions on the use of foreign intelligence information, including information not concerning United States persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory of any reason.

That “any reason,” of course, directly pertains to whether the IC has sufficiently removed US persons from its targets, or sufficiently protected US person data once it collects it. That “any reason” pertains directly to whether or not the IC has–either intentionally or unintentionally–improperly included US persons in its collection. Effectively, the Mukasey-McConnell response reveals that they intend to keep spying on Americans, whether the FISA Court approves of the way they’re doing so or not.

We’ve been talking about this FISA stuff for almost a year now. All this time, the Administration has claimed that it was only interested in wiretapping foreign circuits that transited the US. But that’s obviously just the start of what they insist on doing with this law.

They want to be able to spy on communications between the US and other countries without having to protect US person data through minimization or adequate targeting procedures. George Bush is basically trying to legalize his illegal spying program, all with the willing assistance of the US Congress.

Note: the Senate will shortly start debating FISA again, but McCaffrey the MilleniaLab says it’s time for his walk NOW (he didn’t get his nighttime walk last night bc mr. ew was almost as interested in the results as I was). So use this as a thread to follow what’s going on. Will return shortly–it’s raining and McC doesn’t like to get his hair wet.

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.

19 replies
  1. nomolos says:

    Good morning EW. Watching yesterday I just got angrier and angrier. I know the buggers are lying to protect bush/cheney, the Sens know the buggers are lying to protect bush/cheney, the world knows the buggers are lying to protect bush/cheney and yet the kabuki waltz continues.

  2. klynn says:

    The sad outcome of all of this will be self-censorship by US citizens and a one-party rule. I cannot believe citizens are not outraged. However, the MSM coverage on this has been non-existent with the exception of KO…

  3. TLinGA says:

    Hatch is now speaking against reverse targeting, and is reading back a discussion between himself and Mukasey…I wonder which of them was the “terrorist” that was targeted for that wiretap?

  4. klynn says:

    O/T somewhat…

    EW, my 15 year-old son had an assignment for his Modern World History class. He had to pick a newspaper article, summarize it and write his opinion on the article. He selected the 6 inch AP article from last Tuesday regarding the vote last Monday regarding FISA. He did a great job on writing his opinion and I referred him to your writings and Christy’s. No one at his school had any knowledge about FISA. He educated the masses so to speak…

    He is home sick today. I had him read the CQ article on Lawrence Wright and your postings. He cannot understand why every single college student within a three hour drive of DC isn’t sitting in the Mall right now as a statement of protecting the rule of law. “Where’s the outrage and desire to protect our rights? Probably sitting in the bottom of people’s stomachs because they are afraid they will never get a job if they protest,” he said.

    Then he added, “If the presidential candidates are worth their weight and have worked so hard to win the youth vote, why aren’t they contacting their base to tell them to stand against this like John Edwards did? Otherwise, any wonderful speech platitudes on freedom and liberty are hollow and empty. When are they going to stand up for what is right?”

    Good question kiddo. We need some patriot courage…

      • klynn says:

        I think all his years riding in a back pack carrier as a baby and toddler (on my back) as I worked in the housing projects in Washington D.C. fighting against poverty and cross-cultural conflicts, as well as hearing his Mom present to Congressional subcommittees (when he was two-years-old), had some impact. Not many two-year-olds remember such impressions. He has and it drives his internal compass.(Not to mention, lots of prayers of hope that his eyes would be open to see the world around him.)

        I have to say, in college, I would have been in DC in a heartbeat and would have rallied many fellow students to join me. I want to be there now…

        I’m sure your daughter is “taking in” what you stand for bmaz. It will just take time for her to understand the relevance…in time…

  5. ImaPT says:

    Since the administration has threatened to veto almost every amendment to FISA, including the compromise amendments (Feinstein and Specter), I’ve been telling the Senate offices that I call that they might as well go for broke and vote for the Feingold/Dodd (3907) amendment to strike immunity altogether.

    The way I see it, a veto is a veto and you might as well go in with the strongest position possible (ie. no telecom immunity whatsoever).

  6. Sedgequill says:

    After a little more water is poured, and after we cough and spit a little more, we’re expected to yield.

    Some Democratic Senators are lining up to carry water.

  7. JimWhite says:

    Heh. Jello Jay just got overrun by the klaxon on my cable system for the weekly emergency alert system test. Too bad the test didn’t last longer.

  8. readerOfTeaLeaves says:

    Perhaps not coincidentally, here’s a link on the potential dangers of terrorists and criminals using online virtual worlds to move money and plan crimes (link found via the FDL news update feed): http://www.washingtonpost.com/…..144_2.html
    Nice of the WaPo to publish this article on a day when FISA hearings are on the Senate schedule; note how this article implies that games pose big problems for intel.

    The implication at the WaPo link is that gaming and virtual worlds are mostly dangerous, most of the time. I’m not discounting that these technologies can be misused. Nevertheless, ill-informed, thoughtless, fear-driven policymakers could easily hamper, or shut down, the online resources that people need for ‘cognitive exploration’ and the types of learning that are necessary in order to solve extremely complex, ominous problems that REQUIRE collective problem-solving. (These resources take the form of Second Life, online games, and virtual environments.)

    Anyone interested might like to contrast that WaPo article with the following link about what educators are facing as they try to prepare today’s US school population for the future: http://www.slideshare.net/jbre…..pens-33834

    Random tea leaves from the ’shift-happens’ slideshare:
    1. ‘China will (soon become) the #1 English speaking nation in the world.’
    2. ‘Today’s learner (as of 2006) will have 10 – 14 jobs by the time they are 38 years old.’
    3. ‘In 2002, Nintendo invested more than $140 million in R&D; the US federal government spent less than half that on Research & Innovation in education.’
    4. ‘If MySpace were a country (as of 2006), it would be the 11th largest in the world.’

    So from an educational perspective — completely apart from whether the new FISA regs will even work in collecting necessary info — one ought to ask how FISA changes will impact resources that are NECESSARY for practicing and developing skills related to complex problem solving that requires collective intelligence and social interactions. That kind of learning can’t happen on a blackboard, and it can’t happen on a baseball field, and it can’t happen even by reading books.

    And from the standpoint of ‘usability’, this FISA legislation looks like it is DESIGNED for people to make mistakes. Toss in the US citizen data with ‘non-US citizen’ data, and they blur. People will not have the cues they require in order to make distinctions between A and B; everyone, everywhere becomes ‘the enemy.’ This is cognitively toxic.

    It’s terrible, wretched design. It’s designed to be user-confusing.
    Which makes mistakes inevitable.

    If BushCheney sent out design specs for this FISA mess, and it took the form of a car, they claim that they need: 42 steering wheels, 800 engines, 6 gas tanks (20 gals each), 1200 back seats, 200 windshields, and three axels. The botched design of this whole FISA mess just makes me shake my head.

    Mukasey and McConnell need a few Ed Psychs on their team, or a few interface designers to talk some sense into their heads.

    Entirely apart from the civil liberties issues, it’s very hard to see how they could even make this thing work — it’s too complex, too confusing, and it blurs too many tasks. What a mess!

    Bush and Cheney are lost causes; but if form follows function, then it only goes to reason that the functions are deceptive; therefore, the forms will be unworkable.

    Not surprising, really.
    But frustrating, and sad.

    I’ll say this much for ‘honesty’ — it’s a basis for making things that work, and that function for the tasks they need to perform.
    Dishonesty, not so much.

  9. klynn says:

    Did they resurrect Stalin or Lenin to write this stuff?

    ”including information not concerning United States persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory of any reason.”

    Amazing. No oversight.

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