Having read dozens of discussions on the recent NSA/FISA/Monitoring issue, I have seen all sorts of responses–both measured and wild. I think it would be helpful to try to narrow the issues. To help do that, I’m going to posit some hypotheticals and see if we can get agreement on them. I’m labelling them alphabetically, and my intention is to start with the easiest issues and get harder as the list progresses. For reference, here is the FISA authorization. Here is the AUMF.
A) The NSA taps phone conversations from known Al Qaeda leader Zawahiri in Afghanistan to calls inside Afghanistan. Zawahiri is a known Egyptian national.
B) The NSA taps phone conversations from known Al Qaeda leader Zawahiri in Afghanistan to known Al Qaeda member Abu Musab al-Zarqawi in Iraq. Zawahiri is a known Egyptian national. Zarqawi is a known Jordanian national.
A and B are fully authorized by the AUMF. Both Zawahiri and Zarqawi are directly covered under "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Since "all necessary and appropriate force" against them would almost certainly include shooting them with a sniper, it also covers listening in on their phone conversations for the purpose of finding out about Al Qaeda and/or their current locations.
Neither A nor B are forbidden by the FISA authorization. Neither Zawahiri nor Zarqawi are "a United States person" under section 1801 (i). Neither A nor B require oversight from the FISA court. Any information from A or B could be used as the basis of a later warrant.
C) The NSA taps a satellite-phone conversation from Zawahiri in Afghanistan to a person unknown in the United States which can later be tracked to a pay phone.
D) The NSA taps a land-line phone conversation from Zawahiri in Afghanistan to a person unknown in the United States which can later be tracked to a pay phone.
Both cases are clearly authorized by the AUMF. Neither case falls under the definition of "electronic surveillance" covered by FISA in section 1801 (f). The target is Zawahiri, not a person in the United States. Neither C nor D require oversight by the FISA court.
E) A person unknown in the United States calls Zawahiri in Afghanistan. The NSA monitors the phone call.
F) A known illegal alien in the United States calls Zawahiri in Afghanistan. The NSA monitors the phone call.
Both these cases are authorized by the AUMF because the target is Zawahiri a known member of the group which conducted the September 11, 2001 attacks. In neither case is this in the class of "electronic surveillance" covered by section 1801 (f) because the target is Zawahiri, not a United States person. Furthermore in case F) the person in the United States does not qualify as a United States person.
G) A phone call is placed from a US Senator’s office on Capitol Hill to Zawahiri in Afghanistan. It is intercepted because all calls to Zawahiri are monitored.
One could argue that this call isn’t from a known US person because we don’t know who placed the call from the US Senator’s office. But that is stretching it a bit. In any case, monitoring all incoming calls to Zawahiri is authorized by the AUMF. The Senator (and his office) were not the target of the tap nor were all the senders and recipients in the United States. This is not electronic surveillance covered by the FISA statute. No FISA oversight is needed.
H) A phone call is placed from the residence of a known Al Qaeda member who is located in the United states to Zawahiri in Afghanistan. That Al Qaeda member is a US citizen. The call is picked up because all calls to Zawahiri are monitored.
This is just like case G. The US person is not the target of the tap.
I) A log is maintained of all calls to or from Zawahiri in Afghanistan to attempt to later identify his contacts outside of the United States.
This is clearly authorized by the AUMF and requires no oversight from FISA because no US persons are involved.
J) A log is maintained of all calls to or from Zawahiri in Afghanistan to attempt to later identify his contacts both inside and outside of the United States.
This is clearly authorized by the AUMF. This requires no oversight from FISA because no US person is the target of the tap on Zawahiri’s phones. See 1801 (f)(1) "…a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person…"
K) A log is maintained of all calls made by numbers who also called Zawahiri if origniated outside the US.
This is clearly authorized by the AUMF. FISA is not implicated because this involves no US persons in the US. No FISA oversight is needed.
L) A log is maintained of all calls made by numbers who also called Zawahiri from any origin–including the US, so long as the calls are made internationally.
This is clearly authorized by the AUMF. FISA is not implicated because these calls do not fall under "if both the sender and all intended recipients are located within the United States". No FISA oversight is needed.
M) A log is maintained of all calls made by numbers who also called Zawahiri from any origin–including the US, and including all such calls whether made internationally or within the United States. The identity of the caller is not known at the time the log was created.
This is authorized by the AUMF. FISA is not implicated because the target is not a particular US person. No FISA oversight is needed.
In all of these cases it is clear that NSA monitoring is authorized by the AUMF and FISA oversight is not needed. The harder cases are below.
N) A log is maintained of all calls made by numbers who Zawahiri called including those in the United States. The identity of the caller is not known before the log was created.
This is authorized by the AUMF. It isn’t targetting a specific known US Person and thus a FISA warrant is not necessary. As a matter of best practice, it might be wise to have FISA monitor this to be sure that the NSA isn’t actually targetting US Persons.
O) A log is maintained of all calls made by numbers who also called Zawahiri from any origin–including the US, and including all such calls whether made internationally or within the United States. The identity of the caller is known before the log was created and that person is a US citizen.
This is authorized by the AUMF. FISA authorization might be relevant. It involves a US person under 1801 (i). The question is whether or not the US person is the target of the tap. It is arguable that Zawahiri and/or his network is the target. That argument can’t extend indefinitely (in a seven degrees of Kevin Bacon fashion) but I’m willing to buy it when someone makes a call directly to Zawahiri.
P) A log is maintained of all calls made by numbers who Zawahiri called including those in the United States. The identity of the caller is known before the log was created and that person is a US citizen.
This is authorized by the AUMF. I’m less willing to extend the argument from O) above because calls made from Zawahiri are less suspicious than those made to Zawahiri. (He could be calling to order a jade figurine from QVC, while calls going to him are less likely to be innocent). From my perspective this is still targetting Zawahiri and Al Qaeda and does not require a FISA warrant, but FISA oversight would be wise to ensure that US persons aren’t the ultimate targets.
Q) Same as P and the information detects a large volume of calls with another US person. On further inspection this information reveals that the other person is a drug dealer. This person is prosecuted on evidence based on the monitoring.
This is not authorized by the AUMF. The AUMF authorizes force "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Cases N, O, P, and Q could also exist at degrees of remove from Zawahiri. I’m not sure at which point I would say that you have gone beyond targetting Zawahiri into something else. I suspect I would put it at 2 or 3 degrees (in the US). FISA would of course not be implicated at any degree of separation for non-US persons outside of the US though for purposes of practicality you should certainly have a limit.
It should also be noted that once taps of Zawahiri reveal other persons to be members of Al Qaeda, those people who be subject to starting the chain of monitoring as a different step.
A somewhat different question would be maintaining a log of all calls from number to number (perhaps world-wide) so you could later examine it once a particular number was positively linked to Al Qaeda or a terrorist group. This would almost certainly not be covered by FISA (no intentional targetting of a particular person as to the creation of the log). I think the government should do that kind of thing when fighting Al Qaeda. I am not, however, thrilled with the idea of the database just being out there. Bush should set up an appropriate oversight mechanism to make sure that such a database is not misused. If he has set up such a program without doing so, it is indeed a black mark against him, though probably not an act of illegality.
Sebastian, you rely upon the idea that electronic surveillance (which I propose this thread call “ES”) of a call between A and B is legal or not depending on whether A or B is the “target.”
Can you explain your source for this idea?
I am also VERY skeptical that the AUMF goes nearly as far as you think. A great many of your examples for which you rely on the AUMF would be easy warrants under FISA in any event. Why would NSA insist on avoiding FISA oversight if their activities were so innocent?
That is a good, concise list. At the risk of sounding argumentative for argumentative’s sake, though, my read of the reason the wiretapping-without-FISA-oversight has upset people is that:
1. Bush had been getting FISA warrants for some wiretaps, which implies those were wiretaps for which FISA warrants were necessary; i.e., not covered by the AUMF.
2. At some point, Bush decided to no longer get FISA warrants for the same sorts of wiretaps he had previously gotten FISA warrants for, which implies those were wiretaps for which FISA warrants were still necessary.
3. He did, however, want the Attorney General to approve the program under which those wiretaps were done, which implies knowledge that those were wiretaps for which some oversight was necessary.
4. The Deputy Attorney General would not certify the program, and the Attorney General was reluctant to certify the program, which implies the program was of dubious legality – i.e., not covered by the AUMF.
5. There is a question as to whether the wiretaps which upset people were actually within your categories A-O; i.e., did not involve any AQ/terrorist operative within any reasonable degree of separation. If so, then those wiretaps are not covered by the AUMF. This question is bolstered by the fact that some of the people upset by the wiretaps are NSA agents assigned to do them: surely, the people actually doing the wiretapping would know whether their targets were within your A-O categories.
6. There is also a datamining issue. As I understand it, datamining is by nature broadscale and indiscriminate; i.e., there’s no way to limit it to your categories A-O. Which means it would not be covered by the AUMF, and would require FISA reviews and warrants.
7. We do know the FBI spied on groups having nothing to do with AQ and terrorism. While FBI spying and NSA spying are two different things, it doesn’t take a huge leap of reasoning to wonder, if the FBI was spying on people for political reasons, whether the NSA was also doing that, or had been ordered to do that, and perhaps balked at the order.
8. Which means we don’t actually know, for sure, whether Bush limited his AUMF authority to your categories A-O. It seems reasonable to ascertain this.
9. To boil all of the above points down: if what Bush was doing was perfectly legit and legal, why were people within his own NSA and his own Administration leery of it?
Sebastian: I’ll probably have more to say later, but: I would have thought that your scenario D, and the later scenarios if ‘called’ is read as ‘called on a land line’, would fall under sec. 1801 f 2:
This does not require that the target be a known US person, or anything; just that the call be to or from a person in the US who has not consented. And so I would have thought that scenario D, and the later ones as they apply to land lines, would constitute electronic surveillance as defined by FISA.
The targetting concept comes from the definition of electronic surveillance in the FISA authorization statute section 1801 subsection (f). I linked to it in the main post. It includes:
Hilzoy, I suspect that is why the administration has said things like ‘collected overseas’. I suspect at some point it will be revealed that there is some technicality about a communications satellite in space or an international cable line tapped outside of the US.
It really shows how ill-suited FISA is to cover modern surveillance techniques that the government is likely to use. Take e-mail for example. There are certainly huge amounts of email that are domestic to domestic, yet travel through international channels at one point. If you monitor from the right place you can easily get around (f)(2) despite the fact that it was likely intended to cover domestic to domestic communications. And note what 2 does NOT cover. It doesn’t cover radio waves. That is covered in (3) but in such language as to make intercepting a huge number of satellite-switched cell phones eligible for interception.
Legal cite: in Title 18, Part I, Chap. 119, § 2510, “wire communication” is defined thus:
I realize that’s only for that chapter, but there is no definition of ‘wire communication’ for FISA, and I would have thought it would be a more or less standard term. Since I believe cell phones are connected to the land-line network via switches, cell phone calls would (according to this definition) count as “wire communication”.
This is an excellent example of why this issue is going nowhere.
1) One has to make up a definition or take it out of context to make their point.
2) I could make a good technical argument that a cell phone call isn’t “like” a wire or cable call since they use entirely different technologies.
Hard to follow the logic, unless of course you are just out to attack BusHitler.
I’m not sure how Title 18 and Title 50 are intended to interact in this type of issue. It isn’t immediately apparent to me that the wire-communications definition in title 50 applies to FISA. But even if it did, that doesn’t change my main point which is that there are quite a few domestic to domestic “wire communication” that could be intercepted in a way as to avoid “if such acquisition occurs in the United States”. And anything to Afghanistan could be tapped at an international undersea cable, a foreign switch, or a satellite in space.
Windle, you can make that point politely. Don’t make me cringe to have you on my side.
Windle: people have asked you before why you insist on attributing to the liberals on this site a term for Bush that no one other than conservatives has ever used here, as far as I can remember. You haven’t been able to come up with a good answer.
I don’t respond to, say, Sebastian by attributing to him arguments about ‘Hitlery’ or ‘feminazis’. If I did, it would only reflect badly on me.
And Seb: the reason I citied that was because I got curious about what, exactly, counted as “wire communications”, and finding no satisfaction in FISA, tried other sections. I didn’t mean that it did apply here (it says “for the purposes of this chapter”, and I take it at its word, as I tend to do with statutes.) It was just the first definition I found in the US code, and, as I said, FISA itself has none.
cited, not ‘citied’…
Proofreading: my friend. A long-neglected friend, but one who remains ready to help me out, if I ever choose.
The whole “targeting” concept seems pretty slippery to me. Look at O and P. Someone calls Z, and then all that person’s calls are monitored. That sure looks like the caller is the target, chosen as such because of the call to Z. How can Z be the target if he is not even involved in the calls?
I don’t think the section of FISA you quote helps much here.
Fwiw, my two other main concerns with your piece, Seb, are the one Bernard just mentioned (I would have thought the ‘target’ of a call was whichever of the people on it led to its being intercepted), and your interpretation of the AUMC.
But on the ‘in the US’ point, consider this NYT article:
(Emphasis added.)
Sebastian: I’m not entirely certain, but it seems to me you’re trying to suggest that perhaps *none* of what the NSA is doing is “electronic surveillance” under FISA. (My apologies if I’ve misread your post. It’s late and I didn’t keep track of all the permutations.)
Please allow me to repeat some of what I’ve said in a similar thread now going over at the Volokh Conspiracy:
Boy, I wish you were right that this program doesn’t involve “electronic surveillance” covered by FISA in the first instance. It would mean, of course, that hilzoy and I and many others have wasted a whole lot of time and effort on the AUMF and FISA and Article II and the Fourth Amendment; but that would be a small price to pay if this whole thing were legally kosher on such a basic ground.
But the Administration hasn’t so much as suggested that NSA isn’t engaged in electronic surveillance. To the contrary, the DOJ letter indicates that it *does* involve “electronic surveillance,” at least in part, and that such ES *would be* prohibited by FISA, and covered by the “exclusive means” provision of 2511(2)(f), were it not for the AUMF.
If this program didn’t involve ES in the first place, it would be extremely odd behavior for DOJ to bother writing up the preposterous AUMF defense, which has won them no friends on Capitol Hill.
Moreover, as we know, there are plenty of folks within the Administration, apparently including Comey, who had very serious concerns about FISA violations — this was a knock-down, drag-out fight within the Administration that left the losers (several of them) so discomforted that they leaked classified info to the press. None of this makes any sense unless NSA is engaged — at least in part — in electronic surveillance as defined in 1801. Imagine: The DAG and others create a huge blow-up in the Administration about the possible violation of FISA. Defenders of the program, instead of simply telling the dissidents “Don’t worry; it’s not electronic surveillance,” decide to concoct a completely off-the-wall explanation of how the AUMF trumped FISA; and then, when the story goes public, they continue on with the charade, explaining to the public and Congress that this was electronic surveillance but that Congress unknowingly had authorized it in passing the AUMF . . . when, all the while, they could have simply explained that it’s not in fact electronic surveillance.
Simply not plausible, is it? Thus, it’s not surprising that the DOJ letter concedes that the program involves electronic surveillance — which was confirmed by the AG at his press conference: “Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires.”
Here is a pretty good Time mag article about this. it raises such questions as: how can they claim AUMF gives the wiretapping authority they say it does, when they were explicitly denied that authority when AUMF was being written (ie. Congress refused to explicitly grant that authority when BushCo requested it) ? and, if the program is so legal, why was the NSAs top legal team kept out of the loop ?
(and this I conclude another in my continuing series of posts in which i do not conflate Bush and Hitler)
The software is again rejecting any post from me with links. I don’t expect to be posting here again until this is fixed.
I’ve asked Hilzoy and/or the Kitten, via e-mail, to try posting what I wrote, to see if that works. Meanwhile, this part unsupported by links:
“Sebastian: I’m not entirely certain, but it seems to me you’re trying to suggest that perhaps *none* of what the NSA is doing is ‘electronic surveillance’ under FISA.”
He did? Cite? How could that possibly be compatible with Sebastian’s unstinting use of “the NSA taps phone conversations from….” four times, and the equivalent several more times? (Noting, of course, the distinction Sebastian is making between “taps” (although when it’s the main switch being tapped, perhaps, I’m not sure that’s the best term; but one can’t really say, since we don’t have enough facts) and “monitoring.” I’m quite sure that’s going to fly over the heads of more than a couple of people, I’m afraid.
Incidentally, I previously said on a prior thread that I had neglected to blog the article that broke the news about the switches being compromised. I was confused. I did so here [DELETED] citing [DELETED] (NY Times)
. And. This. Is. Why. You. Can’t. Get. A. Warrant.
(And if someone tells me again that this is bad, I’m going to scream. It’s, as I said, fusion-level bad.)
Gary Farber asked me to post this, since for some reason he doesn’t seem to be able to. Everything after this sentence is by him.
“Why would NSA insist on avoiding FISA oversight if their activities were so innocent?”
And I thought people here were starting to get it. Okay, unfair, because everyone here is an individual.
But, beyond blue in the face, I go.
See, if you feel like it, here, here (mostly light relief there), a placeholder here, here (bottom half, under the transcript), most of all
this here. Frustration here.
Bottom line: if you’re doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can’t get warrants. It’s not humanly possible.
Which, as I keep explaining, only makes the threat exponentially larger than most non-tech oriented left/lib/progressives seem to understand, with this antediluvian focus on “wiretaps” and “why can’t you get a FISA warrant?” That’s a question was entirely sensible, and we all asked it last month. It’s long been answered and answered and answered and answered.
It’s far greater reason for Congress to get the truth out, and possibly impeach, then simple wire-tapping. It’s as if people kept decrying the threat of TNT when we’re talking about the fact that the fusion bomb has been invented and put to use.
Sebastian is correct about the tech. Where we part company is that where he’s copacetic, I say this.
I know it’s a lot of links. I’m sorry. If it’s preferable, I’ll cut and paste, although in that case it would simply make for yet far more links. Sometimes things are complicated, and need a lot of words, and it’s also best to support them with solid citations that are checkable.
[NOTE: edited to remove the part that Gary managed to post. What he posted comes at the end of this. — h.]
Thank you most kindly, Hilzoy.
And since I’m compulsive: what I suspect is going on, although it’s just a guess and might be all wrong, is that something changed in the system you use — Moveable Type, I believe? — to turn on some variety of spam prevention software that prevents posting of posts with some specified (default, here, obviously) number of links. I’ve seen that software in action on many blogs. Unfogged, for example.
But it seems to have somehow tagged me and now it’s got me in the file to be checked each time I post, to see if Gary Farber, Famous Spammer, is evilly linking again. *shrug* It’s just a theory, and I know squat about MT, and little about software.
An even more likely possibility is that the new CrapDetectorSoftware has been turned on, and I’m nailed.
Anyway, night-night, all, and thanks again, Hilzoy.
Yo Windle:
“I could make a good technical argument that a cell phone call isn’t “like” a wire or cable call since they use entirely different technologies.”
Whip it out, cowboy. If you think you can hang a convincing argument on as vague a word as ‘like.’
Gary: it’s TypePad, and it’s not software we put up; it’s something we pay every month to use/get hosted by/etc. Thus my inability to go exploring in its guts.
(Do I have abdominal surgery on the brain? Who, me? Never.)
Yes, Gary and I disagree about whether or not the signals intelligence traffic analysis monitoring is a good idea.
I wouldn’t be ok with it as a part of normal criminal procedure which is why I have always been against treating dealing with Al Qaeda as a normal criminal problem.
The best analogy I see is with signals intelligence as practiced in World War II. Even when the signals were encrypted, it was still important to know who was talking to whom, and how often, and how much.
I do think it would be good to have such a program under an oversight apparatus, but I don’t think that FISA is that apparatus.
By the way, can anyone explain to me why ECHELON isn’t under FISA? I don’t understand how it got to run (even before 9/11) without many people freaking out. I’m not exactly a stranger to libertarian issues, but I had no idea of its breadth until the last week or so. Was I just not paying attention?
By the way, can anyone explain to me why ECHELON isn’t under FISA? I don’t understand how it got to run (even before 9/11) without many people freaking out. I’m not exactly a stranger to libertarian issues, but I had no idea of its breadth until the last week or so. Was I just not paying attention?
I can’t speak to the legalities, but I do recall that during the original debate over Echelon there were a number of seriously freaked-out libertarian types who were claiming that this spelled the end of all or something like that. [No cites, since this is entirely from memory.] It went down… gosh, I don’t actually know why the upset wasn’t more widely spread; if I had to guess, I’d say it was because the particular badness (i.e. breadth) of Echelon wasn’t at that time easily boiled down into a comprehensible soundbite. The technology was too new — or perhaps more pointedly, the press too naive in the ways of technology — to be easily relayed and so a lot of those outcries were dismissed (partially by me, I must confess) as the generic libertarian fear/conspiracy-mongering that engulfs the Internet periodically.
IOW, I don’t really know (:
Sebastian,
Interesting analysis, I think I disagree (strongly) with your intepretation of both the breadth of AUMF and the ‘targeting’ language of FISA. The AUMF thing has been done to death, so we’ll probably have to agree to disagree.
As to FISA, under your parsing, more taps/monitoring/logs/whatever are more legal than one – which is what might be called an absurd result, something sought to be avoided in statutory construction. By that rationale, it would be legal to monitor any payphone so long as you weren’t watching to see who was talking.
As to Gary’s point about the ‘fusion level’ badness of TIAish stuff, I dunno, not qualified. But it’s something best (and perhaps only) to be handled by legislative process not by (secret) executive fiat.
The standard explanation, as I understand it, is that US traffic was monitored by others, and vice versa. Any interesting information was shared. Thus the monitoring was done by foreign intelligence services, nobody spied on their own citizens, but everyone got to use the results. No idea how accurate that is, of course. I always found it unlikely that the USA would allow anyone, even their closest ally, that level of access. On the other hand, who knows?
It was common knowledge in the computer industry, especially amongst those interested in security issues. It popped up in the mainstream press from time to time, but for some reason it never got much play. I think mainly it just sounded unbelievable. Telling people, “They are monitoring every single international phone call!”, gets you some strange looks at parties. I have vivid memories of telling people about ECHELON over 10 years ago. Even I thought I sounded like a paranoid loon.
It was common knowledge in the computer industry, especially amongst those interested in security issues
indeed. FISA, Echelon, Carnivore and such all guarantee a lively discussion at places like Slashdot.
It seems to me that if the government is targeting a US phone number, other than a pay phone, it’s targeting a specific US person. Numbers are penetrable. Otherwise, one is arguing that targeting Hilzoy is OK, because, well, that’s not really anyone’s name, and who really knows for sure whether he/she/it is the person so many people think it is.
I don’t agree that AUMF allows any surveillance covered by FISA on terms not allowable under FISA. Rather, I think that Hamdi + AUMF = 1811. Nothing more.
“Yes, Gary and I disagree about whether or not the signals intelligence traffic analysis monitoring is a good idea.”
I don’t really have a position here, yet, actually, because we don’t have enough information, in my view, as to what’s going on — at least, I don’t feel I do — to be able to sort out one thing from another and say “I approve of this” and “I disapprove of that.”
That’s why I think Congressional hearings are a must, with enough sanitized information provided to the public to give us some clarity within, yes, the bounds of not damaging necessary efforts.
There’s always inevitable tension between the dictates of working security and public disclosure, but that tightrope must be walked to preserve both our liberty and security as much as possible, in order to preserve our democracy, and not destroy our own village in order to save it.
Just so.
“By that rationale, it would be legal to monitor any payphone so long as you weren’t watching to see who was talking.”
No, not if the tap was in the US. That would require a warrant (to listen). I’m not sure what it would require to trace the numbers called.
“Hamdi + AUMF = 1811” would be a really esoteric T-shirt …
“I don’t understand how it got to run (even before 9/11) without many people freaking out.”
Well, they have been, ever since at least the mid-Nineties.
I have a rotten time-sense if I can’t pin an event to something else whose date I can tie down; Echelon has been a subject of controversy so long ago in my memory that I’ve long forgotten when I first ran across early reports (1992?), but it was definitely several years before the EU investigation circa 1998 — the EU only investigated after far too many years of reports to ignore it.
“I’m not exactly a stranger to libertarian issues, but I had no idea of its breadth until the last week or so. Was I just not paying attention?”
Absolutely. It hit the major fan in 1998, Sebastian, with the European Union investigation, and then report, although, as I said, those of us paying attention to intelligence had bits and pieces for a good number of years before that. And even the European Parliament had been rumbling for years before finally giving in and commissioning the Campbell report.
“I always found it unlikely that the USA would allow anyone, even their closest ally, that level of access….”
No, this has long history and precedent, dating back to WWII in its roots, and is exceedingly well documented into the fine grain. Its trunk started to grow in the Fifties, early in NSA history.
See Duncan Campbell’s 2000 summary of his 1999 report to the EU Parliament, for instance. This was not a secret, although it’s certainly true that there was relatively little mainstream U.S. press attention (but that’s the last place to look for informaiton on U.S. intelligence means and methods, of course). (I believe Slart first linked here to that URL, although it’s hardly obscure, being on the first page if you Google “echelon,” for instance.)
Or a FAS selection of pieces from circa 1999, but going back to 1996. Bamford. Cryptome. Studies In Intelligence. An endless variety of semi-fringe left-wing paranoia sites. Some right-wing paranoia sites. Other intelligence-watching sources that I’d have to kill you if I told you about. Etc.
“when I first ran across early reports (1992?)”
That should have been “1982,” damnit.
…FISA, Echelon, Carnivore and such all guarantee a lively discussion at places like Slashdot.”
Not to mention earlier incarnations making for lively discussion on ARPAnet since the late Seventies, when I had friends sending me printouts every few months. A tad earlier than Slashdot, or the Web, or the Internet.
Note that Orin Kerr doesn’t think it’s so trivially obvious that AUMF applies to surveillance. In fact, he thinks it doesn’t:
“It seems to me that if the government is targeting a US phone number, other than a pay phone, it’s targeting a specific US person.”
But that’s beside the point, when you’re intercepting the entire satellite traffic, and the basic switch traffic, let alone doing traffic pattern analysis.
Targeting a phone number is 1940s tech, Charley. I keep trying to get this across, endlessly.
Intelligence tech has never been the same as criminal investigation tech. The FBI were primitive pikers, always have been. Wrong metric.
“I don’t agree that AUMF allows any surveillance covered by FISA on terms not allowable under FISA.”
I agree, although IANAL, and my opinion is worth little there.
“I’m not sure what it would require to trace the numbers called.”
I shouldn’t say without checking, and I don’t want to take the time to check just now (I actually wish to avoid bogging down on ObWings much today, not to mention the posting links problem), but my unreliable memory says that that was settled as not needing a warrant long ago. But please don’t take my memory there as reliable, because it isn’t.
Looking in from vacation and with a 3 year old on my lap, but my understanding of what is going on is none of Sebastian’s hypo’s, since all of them start from as known enemy in Zawahiri. Instead, my understanding is, for example, that any call from any number in the US to any number in Afghanistan is being monitored without warrant, and then analyzed to determine whether it relates to the GWOT. This is what I do not see authorized by either AUMF or FISA.
Can we get agreement that this would be forbidden?
It’s probably worth re-emphasising that ECHELON is just a code-word gone famous. (All the other code-word programs are jealous.)
It wasn’t any sort of new program, in any sort of quantum-leap sense. NSA and pals are always changing code-words, upgrading programs, adding on, making new coordination arrangements, and so and so forth, since 1947. The DICTIONARYs pre-dated ECHELON, as did PLATFORM, and so on and so on, backwards and sideways.
The full old EU Report is here, incidentally. (Gosh I love the Firefox Extension that allows for painless PDF opening in tabs and/or HTML.)
“Can we get agreement that this would be forbidden?”
I’d like to point out that in essense, this has been going on since the first INTELSATs in the 1960s. What was forbidden was a) theoretically, U.S. direct monitoring of U.S. traffic, and b) using it in court, but b) was irrelevant, because SIGINT wasn’t connected to the criminal justice system.
The problem has erupted into the open because of the “tearing down” of that famous wall of separation between the criminal justice system and the intelligence system, with the PATRIOT ACT. There was a reason that was there, and it wasn’t because Jamie Gorelick is an ass.
Sebastian-
I kindly urge you to respond to Marty Lederman’s points above.
I don’t agree that AUMF allows any surveillance covered by FISA on terms not allowable under FISA.
Like Gary, my fellow non-lawyer, I agree.
One aspect of this that troubles me as a practical, if not a legal matter, is this. AUMF was passed quickly. There is nothing wrong with that. In fact it is desirable that, when the country is attacked, Congress act rapidly to give the President the authority needed to respond.
But that necessarily implies that the relevant legislation will be drawn up quickly, that there will be little time for debate or the addition of qualifying amendments, etc. Of necessity, it will be brief.
This suggests to me that such legislation ought to be construed narrowly when questions are raised as to whethera specific questionable activity is authorized.
Suppose, for example, that some legislators had been troubled by the possibility that the President would go establish a program lie the one under discussion, and wanted to get language forbidding it. As a practical matter, this would have been made difficult by time constraints, even if a majority supported it.
And of course there might be other restrictions that legislators would want. We are talking about this program because it is the on that has been implemented and come to light. It is impossible for Congress to consider all possible abuses of power and insert language in the AUMF prohibiting them. Therefore the whole “AUMF trumps everything” argument seems inevitably to lead to very dangerous conclusions.
“What was forbidden was a) theoretically, U.S. direct monitoring of U.S. traffic, ”
That was badly sloppy of me. What was (theoretically) forbidden was intentionally targeting U.S. citizens without a warrant for the specific purpose of recording or listening to their conversations. It would have been impossible, on the other hand, to not “monitor U.S. traffic” through Intelsat while monitoring of Intelsat traffic. I beg pardon for not making sense.
Perhaps a nit, but I don’t understand your rationale for case M, where a US phone # is monitored because it originated a call to someone in Al Qaeda. Since that phone is now making calls to other places in the US, it seems definitely covered by section F/3:
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
That being said, this does indeed look like a big data mining operation, likely violating section F/2 of FISA, since one end of the monitored communication is in the US, as are the switches at which the monitoring is (likely) occurring.
Now, my problem with GWB isn’t that this monitoring is occurring, but that it is occurring without any judicial oversight. What this means is that eventually, this mechanism could be turned on the political opposition, with noone outside of the executive branch being the wiser. We were there in the Nixon years, and I have no desire to revisit those glorious times.
My personal belief is that these types of data mining operations are both very useful for law enforcement against terrorism, and very easy to subvert. Thus, if they are to be used, they require very careful oversight from outside of the executive branch.
Bush, unfortunately, does not understand the damage he does to our democratic institutions when he directs the executive branch to violate the law. The US can not win this battle by abandoning the fundamental principles of the rule of law.
Interesting 2002 Congressional testimony from the head of the NSA at Pratike’s blog. Sample:
“Bush, unfortunately, does not understand the damage he does to our democratic institutions when he directs the executive branch to violate the law”
Yes, he does.
to follow on prof lederman’s comment:
SH: you are pretty soon going to need to clarify your belief as to the scope of warmaking powers that the President has against US persons.
it is absolutely true that sigint is a long-standing war power. on the other hand, so is torture and summary execution. (it’s been a very long time since i’ve read any Caesar or any history of warmaking in Caesar’s time, but foggy memories suggest that he used techniques [like lopping off hands of defeated foes] that the Congress has outlawed.)
So, it’s simply false to suggest that the President has unlimited power in wartime, and even more wrong to suggest that he can exercise those powers against persons protected by the US Constitution.
it’s also critical to note that in Sealed Case the administration argued AGAINST the idea that a wall existed between foreign intelligence surveillance and criminal prosecution.
so once again we get to a very basic question: for what purpose is the admin. targetting calls made by US persons? What does the admin. plan to do to those US persons who appear to be acting for the benefit of Al Qaeda — summarily shoot them? send them to Gitmo?
the classic military use of sigint is to develop military strategies and tactics. If the administration is claiming to be able to use sigint lawfully against US persons who may [emphasize, MAY] be allied with Al Qaeda, as an adjunct to its generic military power, then the administration is, to be blunt, claiming the power to launch military operations against US persons, without review.
I find that very troubling.
“…the classic military use of sigint is to develop military strategies and tactics.”
I’ll leave the legal issues to those better qualified.
But the above ignores most everything from the Zimmerman Telegram through the Black Chamber to VENONA to the entire Cold War.
Diplomatic interception/espionage, and counter-intelligence same, are hardly less important to the history of SIGINT, and I’d argue are, in fact,far more important.
It’s true that by restraining one’s purview to “the classic military use,” the rest of your statement I exceprt above is perfectly defensible, but it’s somewhat… limited in scope and application to our present situation.
“…then the administration is, to be blunt, claiming the power to launch military operations against US persons, without review.”
Beats me what the admin will claim. As I indicated [LINK FREAKING DELETED, DAMNIT], I wouldn’t be wholly surprised to find them claiming that the AUMF, or more likely, simply inherent Presidential power, allows them to summarily shoot everyone in Congress, or as I said here:
However, if they had any brains, they’d put their defense in counter-intelligence terms, not military terms. I doubt I’d agree, but it would make far more sense.
Quite good discussion of Our Topic on PBS Newshour just now, by the way (Rocky Mountain Time zone). Ellen Fitzpatrick of the U of New Hampshire is doing well.
Perhaps this will help the discussion along.
As it happens, my friend and yours, Porter Goss, actually asked the NSA (when he was still on the House Intelligence Committee in 2000) to respond to the issue of eavesdropping on US citizens and it did so at length in a document called “Legal Standards for the Intelligence Community in Conducting Electronic Surveillance.” Granted, this is before 9/11 and the Patriot Act, but I believe most of it still obtains today.
Regarding “targeting,” the NSA said:
Further down, we get this:
For a good overall background on Echelon I recommend reading this Duke Law Review piece by one Lawrence D. Sloan.
It’s possible that these resources were made known to me by one of the fine commenters here (Gary?). If that is the case, thank you for the excellent resources.
Another point to make is that none of these cases that SH has so painstakingly outlined has anything to do with a broad-brush program to examine communications patterns for suspicious activity. As I understand it, this would entail developing a profile of an AQ communications pattern and then looking at all the data and comparing to see where you get a match. I’m willing to make that sort of thing legal w/ safeguards and so forth, but I really don’t think it’s legal now to just sweep up everyone’s stuff and go on these sorts of fishing expeditions. You also have to consider how you get from these sorts of intelligence techniques to prosecutions, since at some point we do need to put people in jail and so forth. We can’t hold everyone down in Guantanamo forever.
Begging pardon in advance if this is exceptionally dense, reductionist, or otherwise addressing something other than the point, but aren’t you in essence saying that spying on ourselves is perfectly fine if we let others do it for us? Or is the implication that our allies will only share with us if we have a warrant?
Ok, now this one appears to say that the hoovering operations are either just fine as long as no one examines the dustbag, or illegal to begin with.
Could be still hung over, I guess.
“The standard explanation, as I understand it, is that US traffic was monitored by others, and vice versa.”
Actually I believe FISA explicitly prohibits this sort of thing, which doesn’t mean it isn’t happening, of course.
Could be still hung over, I guess.
Only one cure for that: Drink up, Shriner.
Which, now that I think about it, has been my suggested cure for almost any troubles with FISA.
I must be terminally confused today. FISA prevents other countries from spying on us?
Drinking days are over, for a spell. I’m now in training for this. Starting today, actually. If anyone has any suggestions to better prepare for massive exertion at higher elevations, please share; I’m all eyes. I’ve done one of these kinds of things before, and I wound up face-down in my mashed potatoes every night.
No Brokeback Mountain jokes, please.
sorry, Slart — I meant to say that FISA prohibits the whole “sliding the stuff across the table” practice where Echelon is concerned.
Well, I’ve read the FISA statutes but this isn’t the same thing as memorized or even understood, so I’m going to have to ask what part of FISA you’re thinking of.
oops, I’m sorry, slartiSARCASTICBASTARDfast.
It’s actually executive order 12,333 that says “[n]o agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”
According to Sloan, the intelligence community maintians that there’s an exception that says that if the information is “incidentally acquired” then it’s okay to use. Very elastic, as you can imagine.
Superelasticbubbleplastic, praktike. I’d imagine that since our allies are gathering the dirt anyhow, we actually aren’t asking them to undertake any forbidden activities. Now, if there had been a prohibition from benefitting from such activities…
And although I’m frequently a sarcastic bastard, I wasn’t being sarcastic this time. I know, my fault, boythatcriedwolf and all that.
Slartibartfast:
good luck!
Slarti: cool! good luck, and carry extra water bottles 😉
“Begging pardon in advance if this is exceptionally dense, reductionist, or otherwise addressing something other than the point, but aren’t you in essence saying that spying on ourselves is perfectly fine if we let others do it for us?”
No, Slart, that’s not what he’s saying. That’s what U.S. government policy has been for decades. If you have a quarrel with this idea, you know who to take it up with. This practice is exceedingly well-documented; see any of the documents on ECHELON I’ve previously cited.
“I meant to say that FISA prohibits the whole ‘sliding the stuff across the table’ practice where Echelon is concerned.”
Do you have a cite for that, Praktike? (I didn’t supply the Duke legal doc, by the way.)
Never mind.
“If anyone has any suggestions to better prepare for massive exertion at higher elevations, please share….”
Come visit me in Boulder.
🙂
I’ll be happy to wave at you, and say encouraging things, every time you ride past me. “Woo-hoo, go, Slart! Way to go! Woot!”
“I’d imagine that since our allies are gathering the dirt anyhow, we actually aren’t asking them to undertake any forbidden activities.”
No, this is completely wrong.
Just read the damned documents on ECHELON.
Specifically, it dates from he BRUSA Agreement of May 17, 1943, to be precise.
Here is a handy little timeline, by the way. (Sebastian, are you reading this?)
Some quotes from Risen’s book here.
I wish to withdraw and revise this, though:
That was over-strong. It’s official policy, generally speaking, that we don’t ask the other participants in the UKUSA Agreement to do that which is illegal under U.S. law for the NSA or other agencies to do. It’s obvious, however, that it unofficially does happen, at least from time to time.
Beyond that, I’d have to get into lengthy descriptions and discussions of the “minimizing” efforts, and the data-acquisition versus the sorting, and other technical aspects.
I’m well aware of all of this, Gary.
Or that we don’t officially ask, which is another possibility.