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The Wall Street Journal’s Misleading Celebration of NSA Spying

January 2nd, 2013 · 7 Comments

The FISA Amendments Act has been extended, without amendment, for another five years—and The Wall Street Journal is delighted:

Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.

One wonders just what their basis could be for the claim that warrantless wiretapping has been “one of the country’s most important post-9/11 anti terror tools.”  After all, a comprehensive audit by the intelligence community’s own Inspectors General found exactly the opposite: That the program launched by President Bush was of no greater value than other intelligence tools; that it generated an enormous number of false leads that wasted time and resources; and that, indeed, it was difficult for intelligence officials to point to a single clear cut case where the program made a crucial contribution to a counterterror success. Much about that program remains secret, of course, but the Journal‘s assertion here is contradicted by the public evidence.

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

Perhaps we shouldn’t be shocked that a publication owned by Rupert Murdoch would be inclined to make light of concerns about illegal wiretapping, but surely it’s not that mysterious why someone might be more comfortable with a duly authorized surveillance statute that preserves a role for the courts, however anemic and symbolic, than with a president’s unilateral decision to simply ignore federal law and bypass the courts entirely.  Still, they do have a point: Substantively the FISA Amendments Act is at least arguably more problematic than the Bush program, because the surveillance programs it authorizes are potentially much more sweeping than Bush’s was, at least on the basis of public reporting. And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House.

In September the House passed the “clean” five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky’s Rand Paul.

Like the Heritage Foundation, the Journal‘s editors conspicuously fail to mention what these “absolutist” amendments proposed.  These included such radical proposals as an amendment to publish declassified summaries of major court interpretations of the law, unless it would harm national security to do so, on the wacky absolutist premise that Americans ought not to live under secret law.  There was also the nutty fringe suggestion that Congress ought to have some idea of roughly how many Americans the NSA is spying on, and that a surveillance program theoretically aimed at foreigners should not be exploited to deliberately circumvent Fourth Amendment protections for citizens’ communications.  What’s really remarkable is that the defeated amendments were about as far from “absolutist” as you can get, and still went down in flames.

This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic.

This is just not an accurate description of what the law permits. The programmatic surveillance authorized by the FAA is not limited to “al Qaeda e-mails,” or to the communications of terrorists; the “target” of surveillance can be any foreign group or individual, and the “target” need not actually be a party to the intercepted communications. Nor is it limited to communications that merely “pass through” domestic switching networks: Calls or e-mails sent and received by American citizens are also fair game. If the original Bush program is any guide, enormous numbers of entirely innocent communications are almost certainly being swept up in the process.

Hypocrisy aside, the irony is that the imperfect 2008 deal could have stood a little scrutiny. The concessions Mr. Bush was forced to make inserted the special FISA court into the wartime chain of command, requiring the national security agencies in most cases to get judicial permission to eavesdrop on even foreign enemies. We still don’t know if this new regime has compromised U.S. intelligence gathering.

This is also false. The law has never required court approval to eavesdrop on communications  when both parties were known to be foreigners, and it still doesn’t. The vast majority of the NSA’s signals intelligence activities remain completely unregulated by FISA. The FISA Amendments Act covers wire communications between Americans and foreigners—which previously required far more rigorous individualized warrants if the wiretap was conducted in the United States—as well as cases where the location of one party to a communication can’t be determined in advance (as is often the case with e-mail). The latter presented a genuine problem that could and should have been solved far, far more narrowly. The FISA court’s minimal involvement in the FAA process—which is limited to rubber stamping broad “targeting procedures” developed by NSA—falls fall short of the traditional warrant approval process, and the idea that it could have “compromised U.S. intelligence gathering” seems frankly absurd.

If the “Imperial Presidency” is only imperial when the President is a Republican, at least that doesn’t represent a real political conviction, merely naked partisanship.

On this point, at least, the Journal is entirely correct: It is sad to see so many Democrats shed their concerns about executive surveillance powers—historically abused by presidents of both parties—now that their bête noire has left office. And with the FAA extended for five more years, Obama too is likely to be long gone before we have another occasion to debate the wisdom of these powers.

Tags: Journalism & the Media · Privacy and Surveillance


       

 

7 responses so far ↓

  • 1 Links 3/1/2013: Ubuntu Phone OS Unveiled, Linux 3.8-rc2, KDE 4.9.5 Released | Techrights // Jan 3, 2013 at 10:34 pm

    [...] The Wall Street Journal’s Misleading Celebration of NSA Spying Perhaps we shouldn’t be shocked that a publication owned by Rupert Murdoch would be inclined to make light of concerns about illegal wiretapping, but surely it’s not that mysterious why someone might be more comfortable with a duly authorized surveillance statute that preserves a role for the courts, however anemic and symbolic, than with a president’s unilateral decision to simply ignore federal law and bypass the courts entirely. Still, they do have a point: Substantively the FISA Amendments Act is at least arguably more problematic than the Bush program, because the surveillance programs it authorizes are potentially much more sweeping than Bush’s was, at least on the basis of public reporting. And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House. [...]

  • 2 A Short Video Summary of the Government Spying Debate – The Atlantic | Government Fountain // Jan 4, 2013 at 11:45 am

    [...] even that little transparency. If you’re following the subject closely, don’t miss this takedown of the Wall Street Journal’s misleading [...]

  • 3 While you’re waiting for the bus | Gravity's Rainbow // Jan 12, 2013 at 4:36 pm

    [...] The Wall Street Journal’s Misleading Celebration of NSA Spying [...]

  • 4 Barry // Jan 23, 2013 at 12:50 pm

    “And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House.”

    From what I can gather, it’s raw fatigue. At this point, Obama has normalized much of the Bush administration’s abuses (with the eager support of majorities of Congress).

  • 5 On Press Inc // Feb 15, 2013 at 1:57 am

    Let us remind you that posting an Author’s work without credit to them is copyright infringement and illegal. The link that you posted on your Twitter account is a page made by a Mr.Cushing would had posted our copyrighted property on his Twitter feed without to the Author. When he was notified that he had to credit the Author or remove the post, he refused and then a harsher message was sent to him. His page is very selective of the messages went sent him. ( We have screenshots of the entire conversation though) No one can use copyrighted work without credit to the Author.That is the very definition of copyright infringement. Don’t bother responding to this email. It is one we created solely to post on your blog.

  • 6 John aupie // Oct 11, 2013 at 1:47 am

    The latter presents a real problem, could and should have been resolved far, far more than narrow. FISA court FAA minimum participation process, which is to limit the broad rubber stamping “Target Program” developed by the NSA-falls fall short of the traditional warrant approval process, and the idea that it might have been “damage U.S. intelligence gathering” seems frankly ridiculous the.

  • 7 jon jones // Dec 9, 2013 at 9:22 pm

    BOYCOTT USA

    ALL PRODUCTS NOT JUST TECH

    WAKE UP WORLD THIS PROBLEM IS HUGE

    It is very simple to fix this whole problem, and that problem seems to always be the USA. Everyone in the world and even the USA needs to boycott itself. They also need to know where there data is going and ensure servers that do not touch USA. This is very simple to do but does have a cost.

    The alternative, do nothing. If you do nothing, you may ask what is the USA doing with your data. They are using it to make money plain and simple. It is not for terrorism or any other grand adventure. It is to take the worlds money plain and simple just like playing poker and knowing your opponents hand. If a company is ignorant enough to not secure their business without the USA and NSA spying, then using them is a sure fire way of destroying your business by espionage and stealing.

    Microsoft has back doors to all its products. This includes getting rid of all microsoft products like windows and replacing it with Linux. People around the world should start writing for open source code to help linux work for the world. All companies should provide tech support and drivers for Linux.

    Cisco routers have back doors to all their products and allow the USA companies in the know to learn secrets to your business.

    This does not mean simply just use new encryption software. These companies built back doors and even your best encryption is not safe. Worse anyone can access your networks once the back-doors are released to the hackers.

    Once trust is lost it is lost forever, and these corrupt American companies do not deserve another penny. They got funding from the USA government to take your information, and what should piss you off is they have it all right now. You have to change the game of your world business today.

    Educate the next generation and your business partners. No companies in the USA on your servers period. Boycott Microsoft, Skype, XBOX, Verizon, Google, Cisco, Apple, Facebook, Yahoo, AOL, Level3, Paltalk and there are 50 companies total so far look them up.

    Follow the work of the BRICS nations (Brazil,Russia,India,China,South Africa) and Europe and start to build a wall around the USA. Even Australia, you need to switch sides and abandon the USA for good. For every dollar you refuse the greater the world becomes and the more money you keep in your pocket. This includes, don’t forget, boycotting the rest of all businesses in the USA. Make the USA hurt until it turns against itself and stops screwing with the world.

    Sincerely,

    Pissed On So Many Levels

    Read more at http://dottech.org/126462/indian-government-bans-use-gmail-thanks-nsa-spying/#IFPs4iwskr4gsccG.99

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