Sunday, February 12, 2006

The FISA Puzzle

NSA spokesmen have been understandably reticent about the details of their warrantless wiretapping, leaving the rest of us with the puzzle of figuring out just what they are doing in order, among other things, to know whether they should be thanked or arrested--or perhaps both.

A useful starting point is the Foreign Intelligence Surveillance Act, the law they appear to be breaking. FISA sets up procedures for getting warrants to intercept communications between terrorists and Americans. The NSA is intercepting communications without such warrants. The obvious question is why--not why they intercept but why they don't get warrants to do it, either before or, as the act permits, after.

I can only think of two plausible explanations. One is that the wiretapping is on an enormous scale, perhaps of all phone conversations with one end in the U.S. and one end outside, using computers to convert speech into text, search the text for keywords and suspicious patterns, and forward the recorded conversation to a human being only on the rare occasions when that search reveals evidence that it may have something to do with terrorism. I think it would be technologically straightforward to apply that approach to, say, a million conversations a day--but I doubt the FISA court would be willing or able to issue search warrants on that scale.

The other possiblity is that the searches do not come close to reaching the probable cause requirement of both the Fourth Amendment and FISA. Checking every phone call might be a sensible tactic, but it would be hard to justify it under that standard. The same might be true of a much less ambitious program of interceptions, targetting conversations that there was some very weak reason to think might be of interest--say all phone conversations between the U.S. and any Muslim country, or all phone conversations involving a party who had been called by someone under suspicion, or by someone called in the past by someone under suspicion, or by … . The fact that someone has talked to someone who has talked to someone who has talked to an Al Quaeda member does not qualify as probable cause for tapping his phone--but it still might be worth doing, if the only cost is a few cents worth of computer time.

As I pointed out in a previous post, quoting a book manuscript that I webbed a few years ago, wire tapping by computer raises an interesting legal problem: If only a computer has listened to your phone call, have you been searched? One could argue that the search only occurs when a human being listens to the recorded conversation--at which point the key words found by the computer provide probable cause. If that is the Administration's unstated argument, it explains one part of the controversy--the issue of whether the NSA was using information from warrantless interceptions to get warrants for further interceptions.

I do not know if my conjectures are correct. What is clear is that any explanation of what the NSA is doing must explain why they chose not to follow the procedures laid down in the law. I do not see how any explanation that comes down to "wiretapping people we have good reason to think are terrorists" can satisfy that requirement.

30 Comments:

At 8:17 PM, February 12, 2006, Anonymous Allan said...

There is a third alternative, i.e. that the administration wishes to demonstrate that it has the authority to proceed without the blessing of Congress or the judiciary. It is possible that even though, for example, it believes there is probable cause in every case it refuses to seek court approval, either under FISA or otherwise, as a matter of principle.

 
At 10:52 PM, February 12, 2006, Anonymous Anonymous said...

"..leaving the rest of us with the puzzle of figuring out just what they are doing in order, among other things, to know whether they should be thanked or arrested--or perhaps both.
"


What possible circumstances would move you to thank them?

 
At 12:21 AM, February 13, 2006, Blogger David Friedman said...

Allan mentions a third alternative. I considered that, but decided it was too unlikely to list. Of course, I could be wrong.

Anonymous wants to know what possible circumstances would move me to thank them. One answer would be if I discovered both that they for some reason couldn't have done it successfully if they had asked Congress for permission first, and that it had prevented a terrorist bio attack that would have taken out a quarter of the U.S. population, including my family.

 
At 5:17 AM, February 13, 2006, Blogger Malachi said...

If only a computer has listened to your phone call, have you been searched?

Individuals have rights; it doesn't matter what violates those rights. There is certainly human intention behind the purposes of those automated systems.

If I build a robot that then walks over and punches you in the nose, have your rights been violated?

What happens when automated search technology is combined with automated prosecution? Like the automated technology that monitor for speeders or red-light runners and issues tickets?

Are you any less ticketed because it was an automated system that ticketed you?

 
At 9:47 AM, February 13, 2006, Anonymous Loudius Fubqua said...

Why not get a FISA warrant? There's another possible explanation. Blackmail. That's Paul Craig Robert's take, in his article My Epiphany. Quoth Roberts:

"The years of illegal spying have given the Bush administration power over the media and the opposition. Journalists and Democratic politicians don't want to have their adulterous affairs broadcast over television or to see their favorite online porn sites revealed in headlines in the local press with their names attached. Only people willing to risk such disclosures can stand up for the country."

 
At 11:08 AM, February 13, 2006, Blogger David Friedman said...

Loudius Fubqua raises the possibility that the wiretapping is being used to make possible blackmail for political purposes. I can certainly imagine that happening at some point in the future, if such interceptions become routine and accepted--which is one reason to oppose them. But at this point, it seems to me that the political risks would be much higher than the gain. A single case where it could be demonstrated that information had been used in that way would turn the public image from "national security" to "another Watergate."

 
At 1:03 PM, February 13, 2006, Blogger Roland Patrick said...

I'll point out again, that we still haven't found even one person who has been harmed by this program. Indicating that the impending dark night of fascism is much less of a realistic worry than another 9-11, Bali nightclub, or Spanish or London train bombing.

What little information we have indicates this is a matter of military intelligence jumping on captured overseas cell phones and laptop computers for links to bad guys operating withing the US.

Which strikes me as 1. a good idea. and 2. within the authority of the Commander in Chief to conduct military operations.

Further, there are many more instrusive things going on inside the US right now that ought to worry civil libertarians more.

The state of Washington has spies lurking in the parking lots of Portland, Ore shopping centers (where there is no state sales tax) looking for cars with Washington state license plates and confronting the owners about what they purchased.

GPS technology is already being put to the use of tracking private automobile use for both traffic control and useage fees by state govts. Not to mention that an American citizen isn't free to come and go to Canada, Mexico, or any other country without being subject to search by customs officials.

 
At 3:15 PM, February 13, 2006, Blogger David Friedman said...

Roland writes:

"What little information we have indicates this is a matter of military intelligence jumping on captured overseas cell phones and laptop computers for links to bad guys operating withing the US.

Which strikes me as 1. a good idea. and 2. within the authority of the Commander in Chief to conduct military operations."

And,

3. Something that could be done with FISA warrants, it being the sort of thing FISA was designed for.

Whatever is happening, there has to be some reason why it isn't following the procedures laid down by the relevant law.I don't think your account provides any such reason.

There are lots of other bad things happening--but the President admitting that he has instructed NSA to violate the law is a pretty extreme case and, on the face of it, that's what seems to have happened.

 
At 3:44 PM, February 13, 2006, Anonymous Loudius Fubqua said...

I offer the blackmail motivation as a possibility, but only as that. Personally, I would lean more to David's speculation that the govt is engaged in widespread data mining of a sort that renders FISA compliance unfeasible. Don't worry though; I'm sure the feds aren't going to use any of this to enforce sales tax compliance. Though, technically, you are supposed to report those online purchases to your local taxing authority.

 
At 4:58 PM, February 13, 2006, Anonymous edgr said...

Roland Patrick: "I'll point out again, that we still haven't found even one person who has been harmed by this program."

That is exactly the problem with the program - because it hasn't gone through the FISA court, there is no avenue for people to find out who has been tapped.

 
At 8:54 AM, February 14, 2006, Blogger Roland Patrick said...

'3. Something that could be done with FISA warrants, it being the sort of thing FISA was designed for.'

About the first assertion, you are undoubtedly wrong. We're talking about perhaps minutes before the information becomes useless.

And, the second is definitely wrong. The purpose of FISA was to stop the CIA and FBI from surveiling the likes of Jane Fonda and John Kerry (and their friends) in the anti-war movement.

The NSA program is to identify people who are trying to execute actual attacks on the United States.

 
At 2:58 PM, February 14, 2006, Anonymous Anonymous said...

Roland Patrick writes:

(quoting me)

'3. Something that could be done with FISA warrants, it being the sort of thing FISA was designed for.'

And responds:

"About the first assertion, you are undoubtedly wrong. We're talking about perhaps minutes before the information becomes useless.

And, the second is definitely wrong. The purpose of FISA was to stop the CIA and FBI from surveiling the likes of Jane Fonda and John Kerry (and their friends) in the anti-war movement.

The NSA program is to identify people who are trying to execute actual attacks on the United States."

My post contains a link to the text of FISA--you might want to read it. If you do, you will discover that FISA provides for granting a warrant after the tap in time critical situations. You will also discover that FISA is explicitly directed at surveillance of terrorists (and hostile nations).

Which is why it is called the "Foreign Intelligence Surveillance Act."

David Friedman
(Posting anonymously because I'm not at home and don't have my Blogger password)

 
At 11:27 PM, February 14, 2006, Anonymous albatross said...

Roland Patrick:

Are you posting from Fort Meade? Otherwise, how do you know who's being wiretapped and why? Indeed, how do we know this wiretapping isn't being used to monitor Hillary Clinton's phone?

Hmmm. This seems like a dilemma. See, we'd like to have some oversight over wiretapping, even for national security reasons, so someone doesn't start using the wiretapping apparatus to dig up blackmail on their political opponents, keep tabs on irritating investigative reporters, or learn about big upcomming mergers in time to make money on them in the stock market.

Hey, I have an idea. Maybe we could have some trusted third parties oversee the wiretapping. We could use some fairly trustworthy, independent types. Say, judges. Then, we could allow wiretapping of this kind, while still having some faith that it's not being too widely misused.

Alternatively, we could simply trust that the president would never misuse such powers. Because who can think of a president we've had in the last 40 years who would misuse this kind of power....

 
At 9:42 AM, February 15, 2006, Blogger Roland Patrick said...

' how do we know this wiretapping isn't being used to monitor Hillary Clinton's phone?'

I suppose that isn't intended to be ironic, but given that the last Democrat candidate for President was at one time an agent for a foreign power during time of war, we can't dismiss the possibility her phone number showed up on a captured cell phone.

At any rate, contrary to Prof. Friedman's suggestion, not only have I read FISA, I've read its history (so well that Stuart Taylor Jr. has complimented me on my analysis of its relevance to the roadblocks it placed in the way of Agent Rowley in the Moussaoui case).

In that history he will be hard pressed to find (even from some of the whackoes on the Church and Pike committees) anyone suggesting that FISA would be applicable to battlefield intelligence. Which is what, from the information available, we're talking about in the NSA program.

 
At 10:08 AM, February 15, 2006, Blogger Paul Pennyfeather said...

This discussion gets to the heart of the FISA controversy (even with speculation) in a way that much of the media/blog discussion does not.

But one thing strikes me as odd. The Bush administration has (had?) tremendous clout after 9-11. Not since FDR made all of congress sit up and beg has a Pres held such sway. If the Bush administration wants to "data mine" calls which 1) are to a Muslim country, 2) involve suspected persons, or 3) seem suspicious in any other definable way, they could do so with the public's blessing. Maybe not libertarian's blessing, but most Americans wouldn't make a squeak. Nor would most of congress a while back.

So why not just state your need? Tell congress "We need to gather time-sensitive info through the use of relatively new technology. The FISA clauses on wire taps protect John Kerry from being treated like John Gotti, but that is irrelevant to our situation."

Instead, they did what they always do: maximum secrecy and minimum disclosure. Nothing unusual for government, but Bushco get the gold medal for secrecy. Every kick in the teeth this admin gets is a result of trying to avoid a kick in the teeth.

If they wanted some sort of blanket warrent with broad parameters they could've gotten just that. The fact that some people (like you and me, perhaps) would've cast a jaundiced eye in their direction, wouldn't count for squat in the end. Now they have to not only make their case to a less-responsive (and bigger) audience, but they have to explain potential law breaking and cover-ups too.

What a silly bunch.

 
At 1:39 PM, February 15, 2006, Blogger markm said...

Roland: "In that history he will be hard pressed to find (even from some of the whackoes on the Church and Pike committees) anyone suggesting that FISA would be applicable to battlefield intelligence. Which is what, from the information available, we're talking about in the NSA program." If we're talking about battlefield intelligence, then we are NOT talking about communications with one end-point in territory which is both legally in the USA and currently under USA control. And in that case, FISA doesn't apply because there isn't much chance of communications intercepted between two foreign points being misused for domestic political purposes.

As for the "war powers" argument, the Constitution also gives Congress the power to make regulations for the military. If NSA intercepts fall under war powers, then the FISA is such a regulation, and the President and NSA are still required to follow it like any other law.

Given the loose FISA regulations and the possibility of wiretapping first and applying for a warrant 3 days later, I can see only one semi-legitimate reason for bypassing FISA: if the NSA was doing something that cannot be covered by specific warrants, such as sucking in everything going in and out of the country and using computers to search it. I think that might well be an effective tactic that should be allowed, with appropriate controls to prevent abuse. The issue is that Bush did not ask Congress to pass a law authorizing this, but instead chose to break the existing law, with no controls in place to prevent abuse.

 
At 5:04 PM, February 15, 2006, Blogger Roland Patrick said...

'If we're talking about battlefield intelligence, then we are NOT talking about communications with one end-point in territory which is both legally in the USA and currently under USA control.'

You can read a letter from a Colonel recently in Iraq, on Don Luskin's website, relating how soldiers there intercept cell phone calls and capture laptops still connected to the internet. Both can easily be communicating with someone in the USA.

The Colonel isn't giving much credit to those who would have him file a FISA warrant before (or after) using the information just because one end of it is in the USA. And he's right. FISA doesn't apply outside the US, at all.

Further, FISA clearly is not a military regulation, so that argument in a non-starter.

 
At 9:39 PM, February 15, 2006, Anonymous albatross said...

Roland Patrick:

Asserting that nothing bad is being done in this program isn't much of an argument against the need for oversight, since there's no way you'd know if anything bad was being done.

The only indication I have that something bad is being done is that they have evaded the mechanism designed for oversight. When someone does that, I suspect they're doing it because they don't want to get caught. Perhaps what they don't want to get caught doing is violating the letter of the law but following its spirit. Perhaps what they don't want to get caught doing is bugging Hillary Clinton's cellphone. How can we know from outside?

This is one of those places where we have very little evidence, and so our prior assumptions tend to dominate what we think.

 
At 12:35 PM, February 16, 2006, Blogger Roland Patrick said...

' The only indication I have that something bad is being done is that they have evaded the mechanism designed for oversight.'

As I said, FISA wasn't designed for this situation. It was designed to keep the FBI and CIA off the backs of the anti-war movement.

 
At 2:08 PM, February 16, 2006, Anonymous Grant Gould said...

There definitely is harm being done: Law-abiding Americans are now watching what they say on international phone calls for fear that a misplaced word might have cops kicking down their doors at midnight. Talk to your local Pakistani grocer; see how safe he's feeling about calling his parents these days. It is never the case that searches and eavesdropping only hurt bad guys, which is one of the reason sthat we have constitutional controls over them.

Second, I think there are a couple of reasons for not using FISA that haven't yet been covered. One is simple stupidity. In an organization as large as the executive branch of the US government, it is easy for dumb ideas to take on lives of their own. Once someone has embarked on a program, the instinct to "stand by your man" takes over and no matter the original reason the program will be defended with increasingly far-fetched excuses. Anyone who has worked in a large company has seen this phenomenon -- even if nobody remembers quite why we started initiative X, people get awfully touchy and territorial if you start saying it was done wrong. There is no reason a priori to believe that the current situation or indeed the program as a whole is intentional rather than an emergent property of the organization.

Second and perhaps even more troubling is a hyperactive concern for secrecy. As one of the (arguably unreliable) witnesses at the recent hearings noted, the NSA apparently has programs which it regards as too secret to even tell congressional oversight committees or the Inspector General about. It is possible that the NSA or the administration genuinely believed the program too secret to tell the FISA court about. Information compartmentalization can become dysfunctional surprisingly quickly in a complex organization.

 
At 6:23 AM, February 17, 2006, Anonymous johnt said...

The Senate Intelligence Committee has postponed hearings on NSA surveillance, you may wonder why, other than the stated reason of needing to know more about it. Is it just possible two reasons are paramount; a] that the President had justification for what he did, b] that the issue is a dog politically.

 
At 11:22 PM, February 17, 2006, Anonymous albatross said...

johnt:

I don't doubt there are good reasons to listen in on phone calls and emails of suspected terrorists. I do doubt there's a reason to bypass all oversight of the specifics of this eavesdropping. This strikes me as more-or-less asking for a scandal.

 
At 4:33 AM, February 18, 2006, Anonymous johnt said...

Albatross, A mistake of omission on my part concerning the word "justification", I meant to say legal justification, the moral or tactical justification being a given. This correction gives a much different mraning to my post of yesterday. If I may question your use of the term" all oversight"; Do you mean the oversight of the full congress, the public, the media? Select members of both Congressional Intelligence committee's were aware and briefed, FISA judges as well. Justices Kollar-Kelly and Lambeth had already ruled on aspects of the NSA program. Short of Billlboards I am not sure how much more outside knowledge is required on a top secret program. Otherwise it's not top secret and therefore useless, which in fact is now what it is.

 
At 11:37 PM, February 18, 2006, Blogger Russell said...

I think that the Bush administration is claiming that their searches are reasonable on their face, thus the Constitutions prohibition of unreasonable searches doesn't apply.

 
At 1:43 AM, February 19, 2006, Blogger David Friedman said...

(Response to Russell)

I haven't seen that argument made. The Fourth amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The second half seems to be expanding on the first--a search made without a warrant so issuing is the kind that the people are to be secure against.

 
At 4:33 PM, February 19, 2006, Anonymous Anonymous said...

Warrantless searches are actually routinely performed by law enfocement - just watch an episode of Cops and it will become apparent that police often search suspects of crimes right on the street and without a judge in sight or a warrant in hand.

These are deemed reasonable and a warrant is not required.

Also, this whole thread hasn't touched on the communication with Congress that went on during the entire process. It may be sexy to say that "Bush just decided to do this on his own", but actually 8 senior members of Congress were in on this from the beginning.

 
At 11:32 PM, February 20, 2006, Blogger David Friedman said...

"but actually 8 senior members of Congress were in on this from the beginning."

And one of them wrote a letter to the Vice President several years ago saying that he had serious doubts that the program was legal, but couldn't confirm them because he wasn't a lawyer and he had been forbidden to discuss the program with anyone, including his lawyer.

So "in on it" in the sense of having been told about it and forbidden to tell anyone else, but not in the sense of having approved it.

 
At 2:13 PM, February 21, 2006, Anonymous albatross said...

johnt (and David):

As far as I can tell, eight congressmen were briefed on the high-level details of the project. This isn't really the same kind of oversight as having a judge approve each wiretapping request.

The only interesting question in this story, to my mind, is why the President doesn't want to have the second kind of oversight--a judge getting a chance to say yes or no. There seem to be only two explanations that make any sense:

a. He thinks the FISA judges are working for Al Qaida.

b. He thinks the FISA judges would not approve the eavesdropping he is having done.

In all the discussion of whether or not the President had the legal or constitutional authority to do this eavesdropping, we shouldn't lose sight of the real issue. Maybe Bush had the legal authority to do what he did. Maybe he didn't. Maybe it's a gray area. But in any case, why did he need to evade this oversight of each eavesdropping request? The only sensible answer (assuming he doesn't think the FISA judges are working for Al Qaida) is that he doesn't think he could get his eavesdropping approved, and doesn't want to try.

Here's my guess: This program is Echelon turned on the American people. If NSA started doing this project immediately after 9/11, they had to have most of the infrastructure lying around ready to go. It's likely they had already laid the groundwork for this years earlier--otherwise, they just wouldn't have had the ability to start doing it all at once.

This tracks with the requests several years ago for CALEA to support access to some huge number of phone calls (I think it was up to half a percent of all calls in an urban area) at once.

If we need this (or whatever we're doing in this program), then let's actually debate it in congress. Widespread eavesdropping of the kind we're discussing here (maybe what they're doing, maybe not) represents a huge change in the balance of power between individuals and government. That's not the kind of change you can or should make in a free, democratic country without any public debate. I understand that this may make the war on terror harder, but if we're going to keep a democratic form of government, I don't see a lot of alternatives.

 
At 7:00 AM, February 23, 2006, Anonymous Anonymous said...

"Anonymous wants to know what possible circumstances would move me to thank them. One answer would be if I discovered both that they for some reason couldn't have done it successfully if they had asked Congress for permission first, and that it had prevented a terrorist bio attack that would have taken out a quarter of the U.S. population, including my family."

Suppose instead they somehow saved a quarter of the U.S. population and your family by slaughtering a hundred (or a thousand, or a hundred thousand)innocents? Would thanks still be in order?

I wouldn't thank men for doing evil, even if the result benefitted me.

 
At 8:50 PM, February 24, 2006, Anonymous Anonymous said...

I suspect Bush and Co. felt they had Constitutional authority for the program and wanted to keep the details as secret as possible, thereby limiting the number of people who were in on it.

Keep in mind that the CIA was/is leaking like a sieve and the State Department seemed to be running its own foreign policy under Powell. It only takes one person with an axe to grind before they’re running off to the NYT and the whole program….oh, that already happened.

As for Rockefeller’s note, I can’t feel too sorry for poor Jay – being in on all the killing of civil liberties and all, and just not being able to do anything about it. Unable to even voice his displeasure to the Ranking Member who was also in the same meeting – oh, he could at least have done that to see if there was a quorum of displeasure. I gotta believe Pat Roberts when he says Jay didn’t ever raise any issues about the program with him - those guys were like peas and carrots running around to all the Sunday talk shows for the last 5 years and agreeing with each other right and left.

In fact no one from that group, and several of them were directly asked by Tim Russert on MTP, said that Jay ever said anything to them against the program. Unfortunately, Jay was so distraught over the program that he declined to appear on MTP, even though the cat was out of the bag and he was free to tell everyone how he’d been working on the inside to shut this down for so long.

So no, the fact that Jay put a potential “I smoked but I didn’t inhale” card in his safe in case it ever came up while he was running for reelection – or President – doesn’t make me feel like there were people in the group of 8 who were struggling with how to shut this whole thing down, but were just too damn severely constrained by law to do anything about it.

I mean, they controlled all the funding for the program and could have ended it quickly if they didn’t like it, or even (cue laugh track) RESIGNED their seat in protest if they felt strongly about it and just went home in disgust.

Wouldn’t you do something other than write “note to Cheney for file” if you had a rogue President who was clearly violating the Constitution of the United States on your watch? Particularly if you were the Minority Leader on the Senate Intelligence Committee and were rich enough not to have to worry about anything for the rest of your life?

Yes. You would.

 

Post a Comment

Links to this post:

Create a Link

<< Home