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Another Dodgy Dossier

June 20th, 2008 · 1 Comment

I allude to it briefly in my Ars piece, but the talking points going around in reply to a New York Times editorial condeming the FISA deal show just how important it is for supporters of the “compromise” that nobody have time to actually read the thing. Here’s what the talking points say:

FISA Legislation now under consideration would “expand[] the president’s powers to spy on Americans without a court order.”

FACT:  The legislation requires that any surveillance targeting Americans must be authorized by an individual order of the FISA Court, based on probable cause.  This requirement would apply to Americans inside the United States, as well as any Americans who may be traveling abroad.

This is, of course, non-responsive. The old FISA legislation required that surveillance “targeting” Americans be conducted in accordance with a FISA warrant, and the compromise, like the Senate bill, preserve this requirement. What is expanded is the ability to spy on Americans’ communications, so long as the “target” of the surveillance is the party overseas, rather than the U.S. person. The old FISA legislation explicitly protected these communications as well. The “FACT” here is not a correction; it’s just changing the subject.

FACT: The legislation contains greater Constitutional protections than the original 1978 FISA law.  First, the bill states that FISA and Title III are the “exclusive means” to conduct electronic surveillance -– eliminating any future effort by the President to circumvent FISA.  Second, the bill requires that government surveillance of Americans abroad must be conducted pursuant to a Court order.  Third, because most international communications transiting the U.S. are now carried on wire lines, the bill will subject most international communications to court review; whereas, in 1978, when most international communications were carried by radio signals, those communications were completely exempt from FISA review.

The second point here is correct. The first one doesn’t actually describe a new protection: The existing FISA law also contained “exclusive means” language, which George Bush believed he was empowered by his Article II authority to ignore. The third point repeats a claim that’s been made periodically in the course of this debate, but as former Justice Department attorney David Kris points out in a Brookings white paper, it’s highly misleading, if not simply false:

In short, at the time Congress was considering and enacting FISA, from 1974 to 1978, it does not appear to be the case that “almost all” overseas calls were carried on satellites; the actual portion was probably somewhere between one-half and two-thirds.  Indeed, the Defense Department (NSA’s parent agency) had a policy in 1979 of “placing one-third of its overseas communications requirements on each of commercial cable, commercial satellites, and military satellites.” Thus, as AT&T explained to its shareholders in early 1980, the “nationwide telecommunications network… connects some 175 million telephones via a complex web of 1.4 billion miles of microwave and cable paths and 12,000 satellite circuits. And it is linked to the rest of the world’s telephones by undersea cable and satellite.” The company was relying on both “higher capacity cable system[s]” and “increased use of overseas satellite circuits” to “keep pace with the rapidly growing volume of international calling,” and it was looking forward to the possible use of undersea fiber optic cables.

So it may be the case that a slight majority of international traffic was going by (less protected) radio waves at the time FISA was passed. But it was clear at the time that cable (and eventually fiber) would play a growing role in carrying international communications. What the talking points dodge here is that large quantities of international traffic have been on wire for a long time, that those communications were previously subject to protections requiring a probable cause warrant for interception, and that those communications will now be subject to government acquisition under a much weaker standard of review, in effect requiring only that the court verify that the government is taking steps to ensure that one party to the conversations they sweep up really is overseas.

FACT:  The best hope of finding out the extent of Mr. Bush’s lawless spying is to require, as this legislation does, Inspectors General to produce a comprehensive report of the surveillance program and produce that report to Congress.  The lawsuits will not discover the extent of the President’s program.  The lawsuits are stalled because the Executive Branch has claimed that the cases violate “state secrets” and thus must be dismissed.  Even if the cases were to go forward, they would not deal with whether the government officials acted lawfully.  Government officials have not been sued in this litigation.

Actually, no. Some litigation has been blocked on state secrets grounds, but the EFF’s class action lawsuit was explicitly allowed by a court to proceed over this objection. And that suit has already brought important documents to light. The case is indeed stalled in the appeals court now, but the court appears to be waiting to see whether Congress will render the appeal moot by granting retroactive amnesty.

FACT:  Under the legislation, the court would be permitted to review all of the written directives received by the defendants, and the court’s review would be based on whether the Attorney General’s certification is based on “substantial evidence.”

Right: The court is entitled to see whether there is evidence that the companies really did get written directives from the attorney general. Nobody doubts that they did, and this is exactly the same standard as was embodied in the previous non-compromise Senate bill.

Tags: Privacy and Surveillance



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