Fear, Frenzy, and FISA

How the Bush administration has kept Congress locked in a September 12 state of panic.

Like Bill Murray's hapless weatherman in Groundhog Day, America is locked in a perpetual September 12, 2001. How else to explain this weekend's frenzied passage of a sweeping amendment to the Foreign Intelligence Surveillance Act (FISA), effectively authorizing the program of extrajudicial wiretaps first approved in secret by President George W. Bush shortly after the terrorist attacks of 2001? How else to make sense of a Democratic Congress capitulating to the demands of a wildly unpopular executive for yet another expansion of government surveillance powers, mere months after the disclosure of the rampant abuses that followed the last such expansion?

The hasty passage of the massive USA PATRIOT Act, a scant 45 days after those attacks, was ill-considered but understandable. Six years later, however, the administration has grown comfortable with the prerogatives panic affords. And, perversely, it has learned that it can continue to wield those prerogatives even under a Democratic majority, provided it insists on regarding Congress always and only as a last resort.

Consider the provenance of this "emergency" legislation. President Bush first authorized the National Security Agency to carry out a range of surveillance activities without court order, the full scope of which is still unknown, but which at the least included monitoring communications between persons in the United States and targets abroad. (Wholly international communications had always been exempt from the privacy restrictions imposed by U.S. law.) When this was revealed by The New York Times late in 2005, the administration insisted that national security required that intelligence agents be allowed to bypass even the super-secret—and highly compliant—FISA courts. Then, following the 2006 midterm elections, which gave Democrats a congressional majority, the Department of Justice abruptly announced that it had found a way to work within FISA after all. Finally, according to The LA Times, a spring ruling by a FISA court judge found that even this restricted version of the six-year-old program ran afoul of the law.

Suddenly it became urgent that Congress "modernize" what was invariably described as "the 1978 FISA statute," conjuring images of forlorn agents in white polyester leisure suits vainly hunting for al-Qaeda terrorists hidden under Pet Rocks. Yet FISA had already been updated dozens of times since its initial passage, including six major amendments since the September 11 attacks, giving the administration myriad opportunities to request all the "modernization" it required, subject to thorough public debate. But even this manufactured urgency, it seems, was not enough. On the eve of the legislature's August recess, House Democrats had worked out a compromise bill with Director of National Intelligence Michael McConnell, which preserved a modicum of judicial oversight over the expanded surveillance powers it granted. But the White House pronounced this unsatisfactory, threatening a veto and demanding still broader powers. If Democrats did not yield completely before Congress adjourned, Bush said, they would "put our national security at risk."

The bill the president signed Sunday, however, goes far beyond the limited reform that all sides had agreed were urgently needed. Because so much of the world's telecommunication infrastructure is located in the United States, even e-mails and phone calls between parties who are both overseas routinely pass through giant "switches" here. The rejected compromise bill would have clarified that interception of such traffic would count as unrestricted foreign surveillance, even if it were conducted domestically with a narrowly-tailored provision:

[A] court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

The parallel language of the final bill is notably broader:

Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

The crucial difference is in the treatment of surveillance "directed at" an overseas party when one end of the conversation is, or may be, located in the United States. The original compromise bill would have licensed broad warrants for such surveillance, requiring only that intelligence specify a "foreign power" as the target of an investigation, without naming the particular people, places, or devices to be monitored. But it would at least have required a warrant, approved in advance by a FISA judge, and established oversight in the form of regular audits by the Department of Justice's Inspector General.

The bill that ultimately passed requires only the approval of the director of national intelligence and the attorney general. Now, the attorney general has 120 days to submit for review "procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance"—procedures the court is instructed to sign off on unless that determination is "clearly erroneous." And these guidelines need only ensure that the communication being monitored "concerns persons reasonably believed to be located outside the United States." Telecom companies will have to comply with information requests under any program so authorized, though they'll be granted immunity from any civil suits arising from their cooperation. And while this stopgap bill sunsets in six months, authorizations and directives pursuant to the act (which may be granted for up to a year) remain in effect until expiration, "and shall not be deemed to constitute electronic surveillance*

Yet the effect of this amendment may be even broader than is immediately apparent. Amidst controversy over apparent contradictions in Attorney General Alberto Gonzales' testimony before Congress regarding NSA surveillance, officials confirmed that, as many had long suspected, the so-called "Terrorist Surveillance Program" is only part of a far broader series of surveillance initiatives, about which little is known for certain. There is reason to suspect, however, that they may include a vast system of "vacuum cleaner" filtering of international traffic. NSA whistleblower Russell Tice spoke to Reason last year about his agency's surveillance, and while he could not confirm any details about classified programs, he described how one might hypothetically work:

If you wanted to, you could suck in an awful lot of information. The biggest constraint you're going to have is the computing power you need to do it. You need to have some huge computers to crunch that kind of stuff. More than likely you're talking about picking it up in a digital format and analyzing it depending on how the program is written depending on whether it's audio or digital recognition you're talking about, the computing power is phenomenal for that sort of thing. Especially if you're talking about mass volumes, if you're talking about hundreds of thousands of, say, telephone communications or something like that, calls of people just like you and me, like we're talking now. Then you have things like, and this is where language specialists come in, linguists who specialize in things like accents and inflections and speech patterns and all those things that come into play. Or looking for key phrases or combinations of key words within a block of speech. It becomes, when you add in all the variables, astronomical.

That would be consistent with reports by an AT&T technician of a secret room in the company's San Francisco office, where NSA computers sifted through each byte of traffic flowing over the wires. An analysis by the Center for National Security Studies argues that the language of the FISA reform has been carefully tailored to exempt not just conventional eavesdropping but also mass-scale computerized traffic analysis from judicial scrutiny.

When the NSA program of warrantless wiretaps initially came to light, Bush's lawyers argued that the Authorization for Use of Military Force, which empowered the president to hunt down the perpetrators of the 9/11 attacks, had implicitly licensed this eavesdropping as well. So we know that this administration is not above claiming that a law authorizes sweeping new surveillance programs, even when the legislators who voted on the law had no knowledge such programs existed. The speed with which this FISA amendment passed guarantees that legislators cannot have had time to consider carefully precisely how much latitude their wording can be construed to grant an executive who has consistently exhibited a disturbing zeal for squeezing the maximum amount of power from every carelessly placed comma.

But then, that was almost certainly the point. Ingenious as the White House has proven at recreating the expedient panic of 2001, however, it is not September 12 anymore. Along with a chance to more cooly appraise the terrorist threat, the intervening years have provided ample evidence of how little this administration can be trusted with its existing powers, let alone new ones. When lawmakers return to Washington this coming September, they might try a bit harder to recall the year as well as the month.

Julian Sanchez is a contributing editor to reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    I am not concerned about Government having information. I am very concerned what we (the citizenry)have and seemingly are further willing to allow them to do with it. Potentially more terrifying than the terrorists.

  • ||

    You ain't seen nothing yet, Tbone. Wait until we allow the feds to take over the health care industry the rest of the way. Then when you're at the supermarket and you try to buy a bag of chips it simply won't scan becuase your cholestorol is too high, and in the name of public health you are instead only allowed to buy carrot sticks and health pellets. I, for one, can't wait.

  • Ryan||

    at least it was voted on this time! but God help us all.

  • ||

    I can see a stopgap bill for the next six months, to serve as a placeholder until the Congress can devote the time to this issue that it deserves.

    The trick now, while the bill is still fresh, is to get Congressmen to commit to actually taking that time when Congress comes back, rather than just reauthorizing the temporary bill without serious review.

  • ||

    Awwww, the pooor Democrats in Congress. The big, bad Bush administration is keeping them locked in a state of panic. If it were up to them, they wouldn't have passed it, but until we vote in a 2/3 Democratic majority into both houses and give them control of the Presidency, they're not going to be able to stand up for our rights.

    I mean, it's easy for me to be against the warrantless wiretapping when I'm just an ordinary guy sitting at a computer. But if I had to actually sit in Congress and vote and stuff, I don't think it would be as easy.

  • ||

    Yeah, joe, we've only known about this issue for two years or so. We need another six months to figure it out.

  • ||

    Leaving the sarcasm aside, I seriously wonder if Bush attached one of his trademark "signing statements" to the bill, stating that he doesn't intend to follow the restrictions in it if he doesn't feel like it.

  • ||

    crimethink,

    The administration just sent a bill to Congress within the last couple of months.

    But your acknowledgement that Democrats in Congress would feel less political pressure to cave to the Republicans' assaults on our civil liberties if they were more secure in their majority, and if there was a President that didn't use these issues as a partisan wedge issue, is noted. I agree.

  • ||

    Anyway, it's too bad you have to view everything in such a partisan manner.

  • ||

    Let's face it: the problem is that we are fundamentally a nation of chickenshits. Our "representatives" reflect that. And everything else follows from that.

    You cannot keep a person in a perpetual state of unrealized fear unless they are so inclined to begin with. And the same goes with nations.

  • ||

    joe, the Democrats never fail to back down. If the Republicans had a slim majority, they would always vote as a block and pass pretty much whatever they felt like passing, even if they had a Democratic president! For some reason, the Democrats are always afraid they will look too liberal if they (gasp!) stand up to Republicans.

  • ||

    Cesar,

    The Democrats didn't act like that when they had a reliable majority. But, yeah, especially among conservative and blue dog dems (oddly enough, the ones who go to the greatest effort to portray themselves as tough guys), there is a distinct lack of spine.

    Nancy Pelosi has more balls than the entire Blue Dog caucus.

  • ||

    "Nancy Pelosi has more balls than the entire Blue Dog caucus."

    Where, in her mouth?

    Seriously, WTF leads you to this conclusion?

  • ||

    joe, it depends on what you mean by "conservative" Democrat. Jon Tester and Jim Webb would probably be considered conservative--especially where you live--but I seriously doubt they are for this, given their statements about the Patriot Act.

  • ||

    Joe, .0001 balls is more than zero, but still not much. I've been disappointed with the Democratic leadership thus far. Not because I thought they were going to enact some libertarian ideal, but because they were elected to do something about Iraq and have done nothing.

    Why would Democrats want to dismantle the surveillance state when they're poised to take control of the equipment?

  • ||

    henry,

    Nanci Pelosi whipped a large majority of the Democrats to vote against the Iraq AUMF, in the poisonous political atmosphere of the Fall of 2002, even though it was sponsored by the Democratic Minority Leader.

    Nancy Pelosi refused to get suckered into playing Rope a Dope on Social Security "Reform" by offering a Democratic half-assed privatization plan, even as the entirety of the center-left establishment demanded that the Democrats do so. She used to answer Congressmen who asked "When are the Democrats going to submit their version of Social Security Reform?" with "Never. Does never work for you?"

    Nancy Pelosi responded to the White House/conservative media campaign over her Syria trip by kicking right back, and neither faltering nor apologizing. As you might recall, that little episode ended with her favorability rating going up as a result of her being charged with "undermining the President's foreign policy" and "talking to terrorists." Fairly ballsy behavior, compared to, say, Tom "I'm Not Comfortable With That" Daschle.

  • ||

    Cesar,

    Good point about Tester and Webb. The relative conservatives in the Class of 2006 are certainly more willing to stand up and fight than the conservative Dems who've been there for a while.

  • ||

    Note to Democrats:

    No matter what you do to try to look tough on national security type issues, the Republicans will always, always call you a big bunch of pussies and basically label you as traitors. Please develop a different strategy to address this rather than folding like a big bunch of pussies. Thanks! Toodles!

  • ||

    Lamar,

    I blame the Democrats for a lot of things, but Republican vetoes and fillibusters are not among them.

    As for "the Democratic leadership," Pelosi is a different bird than Reid. Some of that is from the different levels of comity in the House and Senate, but some of it is personality.

  • ||

    Why would Democrats want to dismantle the surveillance state when they're poised to take control of the equipment?

    Because they, or most of them anyway, don't believe in it.

  • ||

    I really don't understand this. What specifically is supposed to be wrong with FISA?

  • ||

    JasonL,

    FISA estalishes rules for domestic wiretapping - basically, it creases a secret court to issue warrants for national security-related cases. It applies to domestic wiretaps. The government can spy on people outside the country at will.

    So, whaddy do about a call that originates in the US and goes to someone overseas? What about a call that originates overseas and you don't yet know where the recipient is? What if both the caller and the recipient are overseas, the but the call gets routed through a server in the US?

  • ||

    Pelosi is from San Francisco and has virtually no chance of suffering the same electoral fate of a Daschle.

    I don't know if I'd confuse her understanding of this fact with "balls".

  • ||

    Gephardt was an invincible institution in Missouri, and he folded like a house of cards whenever the Republicans used the t-word.

  • ||

    joe | August 7, 2007, 1:28pm | #
    Anyway, it's too bad you have to view everything in such a partisan manner.



    Leaving aside the irony of your statement, which party am I partisan to?

    If I were partisan to the Republicans, wouldn't I be supporting the Republican president's wiretapping program?

  • ||

    You're a third-party partisan, crimethink. You view everything in terms of the two major parties being indistinguishable.

    You know, like Ralph Nader; it is in your partisan interest to deny that either of the major parties offers a better alternative, and whoa! look at that! You keep coming to the conclusion, on issue after issue, that neither party offers a better alternative on that issue.

    I mean, seriously, how do explain the argument "the Democrats cave to pressure from the Republican president to enact his agenda rather than push back, so nothing will change if the Republican President is replaced with a Democrat," except as a partisan effort?

  • ||

    "So, whaddy do about a call that originates in the US and goes to someone overseas? What about a call that originates overseas and you don't yet know where the recipient is? What if both the caller and the recipient are overseas, the but the call gets routed through a server in the US?"

    I guess I thought that FISA, being around since the '70s, had established rules about its limits. People have been making overseas calls for a long time now.

  • ||

    Yeah, it's the problem of calls that originate overseas and go to an as-yet-unknown source, and the problem of furrner-to-furnner calls/emails that go through American servers, that are the bigger problems.

  • ||

    Nancy Pelosi has more balls than the entire Blue Dog caucus.

    I propose a non-binding resolution agreeing with joe. Of course, any of you are free to veto it.

  • ||

    JasonL,

    joe basically gave you the rationale for why we have the FISA courts, but what he didn't add was that the NSA, with the backing of the White House (then Presidential Councel Gonzales) and, initially, support by the DOJ, decided that they were no longer going to ask for warrants from the FISA courts at all.

    These courts also have a provision that allows for the NSA to apply for the warrent up to three days after the wiretapping in case of an emergency, so that was not the reason for the non-complaince. Very likely, the non-compliance resulted from the method of collection - probably an electronic intercept and recording of many if not all overseas calls which were then sifted to look for questionable characters or phrases. There is no way a program like that would ever square with the FISA act as written. Also, this is the likely explanation why the DOJ withdrew support for the program that resulted in the trip to visit Ashcroft when he was in the hospital to get him to sign off on it when his acting AG wouldn't.

    This updated version is the likely result of negotiations to square the law with this Echelon like vacuuming program.

    BTW, the above is speculation on my part, but I'd put a C-note on it.

  • ||

    So, anybody who doesn't like the Democrats is automatically partisan? That's mighty convenient.

    I guess that follows the same logic that anyone who disagrees with Republicans is in league with the enemy -- oops, there I go again...

  • ||

    No, crimethink. Go back, reread my argument, and see if it is a criticism of "anyone who doens't like the Democrats."

  • ||

    I blame the Democrats for a lot of things, but Republican vetoes and fillibusters are not among them.

    Yes, fine, but what does this have to do with 16 (I believe) Senate Dems voting with the GOP to give bush the changes he wanted with FISA ?

    The final vote was 60-28 if I remember correctly, and when Bush said jump just under half the Dems jumped.

    Yet you still are trying to defend the Dems somehow by playing the filibuster/veto card? It isn't relevant at all.

    Harry Reid should never have brought this legislation to a vote and the Dems should have said "Mr President, see you after the recess -- and then we can talk about minor changes to FISA".

    But they didn't. THey fucking caved. Again.

    I for one will not make excuses for them in this instance.

  • ||

    joe,

    Not in so many words. But I don't see how anyone who says the Dems caved to the administration could escape being called partisan under your logic.

    Isn't a partisan without a party kind of like a circle without a center, anyway?

  • Jason Sonenshein||

    "Nancy Pelosi has more balls than the entire Blue Dog caucus."

    That's like saying that Moe is the smartest of the 3 Stooges. Pelosi and Reid both capitulated to Bush by bringing this to a vote.

    I really thought things would be different, with Democrats in charge. Boy, was I wrong. Congress is still as eager as ever to give Bush a blumpkin while he shits on the Constitution.

    I've given to the DCCC and the DSCC in the past, but never again as long as Reid and Pelosi are at the helm.

  • the constant skeptic||

    hooray for the passage of this bill, there was a lot of much needed updates in there that will keep the largely idiotic american public safer from people who are really trying to kill us through acts of terror each and every day. Big brother is not always such a bad thing; would you rather live in Libya or Pakistan? Get a brain and read the changes to the bill, they do not interfere with US citizens freedoms at all, unless they are terrorists or talking to terrorists of course, and to them I say good luck because your days are numbered.

  • ||

    Why is it that whenever someone comments on our nation's efforts to keep us safe from attack we hear endless droning about "rampant abuses" by the system?
    HAS THERE BEEN A SINGLE COMPLAINT BROUGHT AGAINST OUR GOVERNMENT FOR AN ABUSE OF PRIVACY?
    Buehler?...Anybody?

  • oncogenesis||

    Someone answer me one simple question: Why exactly must this "terrorist" surveillance be warrantless? Why must the executive be allowed to do this without any oversight from the allegedly co-equal branches?

    constant skeptic: Big brother is not always such a bad thing; would you rather live in Libya or Pakistan?

    Dunno. Would you rather get throat cancer or brain cancer?

  • ||

    The administration just sent a bill to Congress within the last couple of months.

    joe, Congress writes the laws, not the president. They can roundfile anything from the president if they don't agree with it. Bills that get passed by Congress do so because the majority party in each house agrees to it. And WTF were you thinking when you, Mr. Defend the Democrats No Matter What, chastised crimethink for allegedly being partisan? Is your IronyDetector TM even rustier than usual?

  • ||

    Brutus,

    Considering that they refuse to let anyone outside a small sliver of the Executive Branch know any details of the program, no one whose privacy has been violated would know to complain.

    Does that mean that if your local restaurant installs pinhole cameras in the women's restrooms, and no one ever finds out about it and complains, that no one's privacy has been violated?


    jh,

    Yeah, being called partisan by joe is kind of surreal.

  • ||

    But they don't do anything with the intelligence they have:

    http://www.washingtonpost.com/wp-dyn/content/article/2006/09/30/AR2006093000282.html

  • ||

    Someone answer me one simple question: Why exactly must this "terrorist" surveillance be warrantless? Why must the executive be allowed to do this without any oversight from the allegedly co-equal branches?

    This is speculation on my part, but it was warrantless because it was essentially a data mining program where many (all?) overseas calls were monitored and analyzed after the time of the call. You can't get a warrant that names everyone on the planet.

    An interesting question is why didn't Bush ask for a change to the FISA law until now. I suspect the answer is that he didn't feel like politically he needed to - he had a compliant House and Senate in his pocket. And he had fun sticking it to those pussy Democrats.

    Why is it that whenever someone comments on our nation's efforts to keep us safe from attack we hear endless droning about "rampant abuses" by the system?
    HAS THERE BEEN A SINGLE COMPLAINT BROUGHT AGAINST OUR GOVERNMENT FOR AN ABUSE OF PRIVACY?
    Buehler?...Anybody?


    The Inspector General reported recently that several thousand National Security Letters were issued illegally. Do you know what a NSL is and what you can do to someone with one? Look it up if you're interested.

    Also, the warrantless wire taps are prima facie illegal according to the 4th Amendment to the Constitution. My guess is that you will counter this with a pithy comment along the lines of "The Constitution is not a suicide pact." To which I will reply, "Go fuck yourself."

  • ||

    """These courts also have a provision that allows for the NSA to apply for the warrent up to three days after the wiretapping in case of an emergency, so that was not the reason for the non-complaince"""

    I guess the NSA has a machine that can make things happen faster than now. FISA allows you to spy now, justify later, but the Bush admin keeps saying "now" is not fast enough we must have the ability to do it faster.

    I can't believe how many people actually buy into the FISA is not fast enough arguement. I love asking them, How much faster can you get than now?

  • ||

    """"HAS THERE BEEN A SINGLE COMPLAINT BROUGHT AGAINST OUR GOVERNMENT FOR AN ABUSE OF PRIVACY?
    Buehler?...Anybody?

    The Inspector General reported recently that several thousand National Security Letters were issued illegally. Do you know what a NSL is and what you can do to someone with one? Look it up if you're interested. """"

    I believe their response was that nothing was "abuse", only mistakes. It's a semantics game that would never, ever work for a civilian. I didn't abuse my wife and kids, I just make a mistake.

  • ||

    How do you shame an administration that is shameless? How do you deal with a Republican Party which massivly supports the ending of many civil liberties and a Democratic Party too cowed to stand up to it?

  • ||

    I guess the logic is that any person is a 'potential' terrorist, we do not need any evidence for something that is so obviously true. Since we cannot wire-tap US citizens (who too are all 'potential' terrorists) without a warrant at the least we should be able to wire-tap all non-US-citizens. Now if it so happens that a US citizen is talking to a non-citizen then we should be able to monitor both ends of the conversation; since everyone is a 'potential' terrorists, we are only monitoring a 'potential' terrorist conversation. If this violates US constitution then so be it, protecting our citizens from 'potential' terrorists is more important than following the letters of the constitution.

    I guess with these laws we are fast becoming a third-world country. No need for anyone to move to Libya. Ghaddafi will be happy to have such prowess.

  • ||

    DE STIJL WRITES:
    "the Inspector General reported recently that several thousand National Security Letters were issued illegally. Do you know what a NSL is and what you can do to someone with one?"

    A bit condescednig but interesting. Here's an article about someone who had an NSL issued to them:

    http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html

    This is exactly what I WANT the FBI to be doing to protect me and my family. De Stijl, thank you for illustrating exactly what I was saying in my earlier post regarding the hysteria of those who are more concerned with their rights than our safety!

    As for your comment "Go fuck yourself."...

    It is interesting that you are so concerned with our govenment's supposed abuse of power...you can't even engage in simple dialogue without being utterly disrespectful!
    Shame on you.

  • ||

    CRIMETHINK:
    "no one whose privacy has been violated would know to complain".

    Then what's the big deal?
    Let the government do its job for crying out loud. If they screw up and let another attack occur, people will be screaming "why didn't they protect us?".
    I still cannot fathom why some people are more concerned about privacy violations, which you just said wouldn't even be noticed, when this type of surveillance could save the lives of Americans.
    Beuhler?...Anyone?

  • ||

    Those who are against such eavesdropping must explain to the public that it is more than just a privacy issue. And, you can be harassed by government agencies even if you have not committed any crime. Our forefathers emphasized privacy not because it is a nice abstract concept but because they understood that lack of privacy will lead to a loss of freedom which in turn would transform this land of ours into a police state. They understood it well because they fought an authoritarian regime; albeit the technological prowess of that regime was puny compared to that of our current King George.

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