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Dear FBI: Ahmed is Not a Terrorist. Pinky Swear. Love, Al Qaeda.

November 10th, 2009 · 2 Comments

I’m going back over the transcripts from last week’s PATRIOT hearings and still a little gobsmacked by the shameless stupidity of the remarks from grown men who actually get to decide what the law will be.  Remember, this isn’t what they say to the rubes from the stump; it’s how they talk to each other when nobody but the C-SPAN Ocho audience is watching.  Consider this gem from Rep. Lamar Smith (R-TX):

Once this provision expires, all al Qaeda will have to do is publicly disavow one of its members, claiming that the target of their investigation is not affiliated with the terrorist group, and intelligence officials may be prevented from conducting surveillance on that lone terrorist. This lone terrorist can then travel anywhere in the world, plot an attack against a U.S. Embassy, our soldiers in Iraq, or even civilians here at home, and our intelligence officials will have no idea because this bill prevents them from tracking a lone terrorist.

Implicit premises: (1) Our highly trained intelligence agencies just take the public statements of terrorist groups at face value. What, that guy’s not a terrorist anymore? Whatever you say, Osama; guess we’ll shut down the microphones.  (2) We have no laws that might permit us to track or wiretap people who are plotting murder and mayhem if they’re not considered an “agent of a foreign power” under FISA. Like, if you just want to commit mass murder, but it’s not international terrorism? We’re just stumped. Go ahead, I guess.

Some stuff is just weird and false in ways that perplex me. For instance, not only must Jim Sensenbrenner (R-WI) know this is not true, but he must know that his colleagues also know it’s not true.  And yet he says:

I would also point out that the national security letters have a lot of problems with them, and I will be the first to admit that, but they were not 1 of the 17 expanded law enforcement provisions contained in the PATRIOT Act and the intelligence bill. The national security letters provision was contained in the bill that was authored by Senator Leahy of Vermont in 1986, and the PATRIOT Act merely moved where it appeared in the U.S. Code book from one section to the other.

This is just ludicrous. They’re in the middle of a debate about the far broader standard under which records can be obtained using a national security letter because of the PATRIOT Act. Indeed, at the very same hearing, one of Sensenbrenner’s colleagues will complain—also confusedly and inaccurately, but never mind—that the Democratic proposal would revert to the pre-PATRIOT standard for obtaining an NSL. The real pre-PATRIOT standard required that the records pertain to an agent of a foreign power; the proposal on the table would also allow the acquisition of records pertaining to the “activities” of suspected agents or people in contact with suspected agents. So the revised standard is still very much broader than the pre-PATRIOT rule, though far more restrictive than the current non-standard, which is anything an agent thinks might be “relevant” to an investigation. And of course, post-PATRIOT, the NSL law was changed again to massively expand the kinds of records that could be sought and the types of “financial institutions” that could be served with requests. To claim that the extremely modest NSLs of 1986 bear any resemblance to the gargantuan data Hoover they’ve become under current law is just flat out risible; it’s like comparing the Attending Physician of Congress with Medicare. But for reasons mysterious to me, Sensenbrenner keeps recurring to this manifestly false argument. I’m reluctantly compelled to posit that he somehow believes it, because I can’t imagine who else he thinks he’s fooling.

Then there’s this from Dan Lungren (R-CA). Again, I want to believe this is a cynical lie, but since I assume most of his colleagues know better, there’s the terrifying possibility that a man with a vote on the House Judiciary Committee believes nonsense like this:

The amendment also attempts to improve the bill’s language requiring minimization of FISA pen registers, despite the fact that such a minimization requirement is unworkable and impractical. Unlike other tools which actually collect content, such as wiretaps, pen registers and trap-and-trace devices merely request outgoing and incoming phone numbers. Because the government cannot collect any content using pen registers, a minimization requirement makes no sense. What is there is there to minimize?

This was roughly accurate when FISA first passed… in 1978. But now pen/trap orders can obtain reams of information, potentially including detailed geolocation tracking data for cell phone users and complete IP logs—every person you e-mail, every IM session you initiate, every Web site you visit. Dan Lungren just can’t fathom why someone might want the government to delete such records when they’re obtained for innocent people, or to limit the circulation of personally-identifying information about innocent Americans (like e-mail addresses) when it’s not relevant to intelligence.  The sad thing here is that if you thumb through the transcript, it immediately becomes obvious that Lungren doesn’t have the first idea what he’s talking about. He’s acting as a sock puppet for DoJ, introducing an amendment they’ve written for him and reading off talking points he doesn’t understand in support of it.

If he were minimally informed, he’d know that DoJ had—publicly, at least—agreed over two years ago to develop minimization procedures for National Security Letters, which obtain the same kind of records retrospectively, rather than on an ongoing basis. To say that it would be “unworkable and impractical” to do for pen/traps what DoJ has already agreed to do for NSL records is just incoherent—but there’s no sign that Lungren has stopped to think about the words he’s been instructed to recite. The folks who are writing Lungren’s scripts and handing him his marching orders surely do understand how the law works and what minimization would mean in this context. And once again, I’m not sure whether to regard that as reassuring or all the more worrying.

I’m not even going to get into the whole running “what if al-Qaeda opens a bookstore” bit, which even in this context is depressing. On the whole, rereading the hearing transcripts felt a bit like watching Charlie from Of Mice and Men playing with some delicate woodland creature. You can tell they don’t mean any harm, but when that much power is wedded to so little understanding of what they’re handling, you just know they’re gonna break it.

Tags: Law · Privacy and Surveillance



2 responses so far ↓

  • 1 matthew hogan // Nov 10, 2009 at 1:56 pm

    I think it’s Lenny in Of Mice and Men. Charlie or Charly is “Flowers for Algernon”, but there is a common rodent theme in all of those and in the subject-matter of this post.

  • 2 Inspiring Confidence in Congress | Certain Habits // Nov 10, 2009 at 4:13 pm

    [...] Sanchez, “Dear FBI — Ahmed is not a terrorist. Pinky swear.” Read the [...]

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