Thursday, August 2, 2007

FISA court ruling behind Bush attempt to expand wiretaps

According to Michael Isikoff and Mark Hosenball, that’s why Bush is asking for expanded powers:

(House Minority Leader John) Boehner’s description of the scope of the ruling appears to focus on one key feature of the surveillance program—the large-scale tapping without warrants of telecommunications "switches" located in the United States; they are used to rout international calls even when both parties are overseas. But there are indications the ruling has in some instances interfered with the National Security Agency's ability to intercept phone calls where one of the parties is in the United States, as well.

Under President Bush's original executive order creating the surveillance program after the September 11 attacks, the NSA eavesdropped on such calls (including those with at least one party inside the country) without seeking specific warrants from the FISA court. …

At some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates — concluded that some aspects of the warrantless eavesdropping program exceeded the NSA's authority under the Foreign Intelligence Surveillance Act. … The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a "big deal" for the administration.

Congressional aides said that Democratic and Republican leaders of the intelligence committees met until late Tuesday night trying to reach an agreement on a short-term measure that would grant some of the enhanced authority — including the ability to tap telecommunications switches without warrants — that the administration is seeking.

The even bigger problem, though, is that Bush wants Attorney General Alberto (V-05) Gonzales to have an oversight role. But, given his partisan hackery, there’s no guarantee he won’t try to use data mining from this program for political purposes. Given his perjury before Congress, there’s no guarantee he wouldn’t lie about having done that.

It’s good that Congress is resisting the expansion of NSA power on this ground. But, with this administration in place, I still say it should be resisting any expansion of NSA power, period.

Again, whatever restrictions BushCo is worried about didn’t seem to unduly restrict the Clinton Administration, and Congress needs to remember that.

Yet more on the ruling is in the L.A. Times and Washington Post.

The Times provides more detail on the court ruling:
(Some) officials said the ruling's reach was broader, affecting cases “where one end is foreign and you don't know where the other is” — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a “basket warrant” — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

The precise effect of the ruling is unclear, but a second official said that it “reduced the amount of intelligence we were collecting” on overseas terrorism suspects.

According to the Post, it sounds like Democrats are already ready to give away the store, with the exception of the Gonzo oversight issue:
Congressional Democrats outlined a temporary plan yesterday that would expand the government's authority to conduct electronic surveillance of overseas communications in search of terrorists.

The proposal, according to House and Senate Democrats, would permit a secret court to issue broad orders approving eavesdropping of communications involving suspects overseas and other people, who may be in the United States. To issue an order, the court would not need to identify a particular target overseas, but it would have to determine that those being targeted are “likely,” in fact, overseas.

If a foreign target’s communications to a person inside the United States reaches a “significant” number, then an court order based on probable cause would be required. It is unclear how “significant” would be defined.

It is truly both scary and fubar that Congressional Democrats would approve a FISA expansion with a blank check line item like failure to define “significant.”

At least a few Democrats still have their wits about them. From the Post story:
Sen. Russell Feingold (D-Wis.) said that the proposal, while better than the administration's, “does not have adequate safeguards to protect Americans’ privacy.”

It’s clear, and the Post makes it clear, this could significantly expand e-mail and phone snooping on American citizens and companies.

I also can’t believe that the Democrats don’t recognize that, through executive order or signing statement, Bush will try to make permanent any new provisions enacted in a temporary bill. I don’t care if the bill has a six-month “sunset” provision; I expect Bush would try to ignore that in any way possible.