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.