At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier....
The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court's supervision.
A ruling a month or two later - the judge who made it and its exact timing are not clear - restricted the government's ability to intercept foreign-to-foreign communications passing through telecommunication "switches" on American soil.
The security agency was newly required to seek warrants to monitor at least some of those phone calls and e-mail messages. As a result, the ability to intercept foreign-based communications "kept getting ratcheted down," said a senior intelligence official who insisted on anonymity because the account involved classified material. " We were to a point where we were not effectively operating."
What they are referring to is foreigner to foreigner calls, which should not require a warrant. Suddenly, due to this technicality the judge ruled on, they did require a warrant. Glenn Greenwald, on his appearance on Washington Journal on CSPAN, made clear that we have no quarrels that a fix was needed for this. We don't have to guarantee civil liberties for foreigner to foreigner calls. The Washington Post has more on the ruling and the problems it caused:
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved....
The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil, a task so time-consuming that a backlog developed. "We shoved a lot of warrants at the court" but still could not keep up, the official said. "We needed thousands of warrants, but the most we could do was hundreds." The official depicted it as an especially "big problem" by the end of May, in which the NSA was "losing capability."
We can all quibble as to how high a threat there is of a terrorist attack on American soil in the coming months. Obviously, the administration has used terror fears for political gain so many times in the past, it has left us, and many Democrats in Congress, very jaded. But, this backlog of warrants for foreigner to foreigner calls was real. That is not in dispute, and learning that fact left me very concerned about our ability to continue our intelligence gathering, a vital part of what should be the main strategy of fighting terrorism (the other vital half being law enforcement). Democrats were informed on July 24th how bad the situation was:
A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act....
Democrats agreed. "At that time, the discussion changed to 'What can we do to close the gap during the August recess?' " said a senior Democratic aide who declined to be identified because the meetings were classified. As delivered by McConnell, the warnings were seen as fully credible. "He's pushing this because he thinks we're in a high-threat environment," the senior aide said.
Prior to this moment, the Democrats were in no shape or form caving or capitulating to the administration. They were still seeking pertinent papers of how the warrantless NSA wiretapping program came into being, but the administration turned them down. But when it became apparent that the backlog was very large, that is when they dropped hardball tactics and set to put together a temporary fix to this loophole in the law. In short, the Democrats set aside partisan considerations in order to get the government's business done. This was not going to be about trampling civil liberties of the American people, but fixing a problem that had occurred at the FISA court. Unfortunately, the Bush administration has no sense of duty to the people, and used the urgency of the matter to screw us over. The Democrats were caught between a rock and a hard place, when having put together a bill -- the Rockefeller/Levin amendment -- which did everything the administration claimed it wanted -- was suddenly and inexplicably rejected on Aug. 2nd. The TPM Muckraker had a very interesting article about the role Admiral Michael McConnell, director of national intelligence, played in these negotiations:
At issue is Thursday's FISA deal. As TPMmuckraker reported, Democrats left a marathon negotiation session with McConnell believing he had agreed to a deal. The proposed revision to FISA would allow the NSA to obtain foreign communications without a warrant. But soon they learned that the White House had rejected the bargain and were left perplexed by McConnell's acquiescence -- a confusion compounded by Friday's Senate passage of a far broader bill.Despite Democratic recollections of McConnell citing "pressure" from above, both he and the White House now deny that there was ever any "deal" for the administration to scrap. But the acrimony that followed among Democrats, fueled by widespread criticism of the act from civil libertarians and of the Democrats from the press, was intense. After all, the administration used McConnell to negotiate its bill in order to exploit his credibility: its other principal architect, Alberto Gonzales, is politically radioactive. Chairman of the House intelligence committee Silvestre Reyes (D-TX) tells The Los Angeles Times that while he thinks McConnell negotiated in good faith, "I think he got caught up there at the end in the politics of it."
It is clear by now that the Democrats were outmaneuvered. And I respectfully disagree with this diary that the Democrats could have hung around all August trying to get a better deal. This bears repeating: there was a backlog for warrants of foreigner to foreigner calls, with 75% of those requests still waiting for FISA approval. That was an unacceptable position for our intelligence agencies and it needed to be fixed. This whole episode speaks of the dysfunctional nature of the Bush administration and their most important members (had there been a trusted and respected Attorney General, I doubt this mess would have happened, and the loophole would have been fixed already), and the fact that the Bush administration always puts their own selfish needs before the people's, the U.S. Constitution's, and our own national security. Let me be plain here: keeping Alberto Gonzales as Attorney General is a threat to our national security as he is thoroughly distrusted and serves as a burden in handling national security matters.
As to the Democrats, read the statement by Robert Casey, who voted for this measure:
"I voted for both versions of the temporary FISA fix in order to ensure that U.S. intelligence has the tools they need to target terrorists while a larger review of the FISA law is conducted."The Bond-McConnell version supported by the White House is far from ideal and I deplore the tactics employed by the Bush Administration to push its agenda through the politics of fear.
"A thorough review when cooler heads can prevail is needed for a permanent FISA fix that keeps the United States safe from terrorists while also safeguarding the rights of American citizens."
Speaker Pelosi has made it clear that the bill was unacceptable and that it will be fixed in September. It is up to us to make sure Democrats do that. But in spite of my anger over this bill, which make no mistake it is an abomination, knowing more of the facts of what happened has been helpful in understanding why the inexplicable occurred under their watch. The Democrats are guilty of one thing above any other: getting their asses handed to them at the negotiation table. Come September, they better have a plan to make sure that doesn't happen again.
Yesterday I supported two measures to amend the Foreign Intelligence Surveillance Act. These measures were considered against the backdrop of heightened concerns from our nation's intelligence community abut the threat of international terrorism. The ramifications of the two amendments before us last night were not political. Instead they related to the urgent demands of national security. I chose to heed those warnings. We now have six months to work in earnest to bring full accountability to the process.
This distinction and the threats to national security were stated clearly by Admiral McConnell as well as four of the eight Democratic members of the Senate Intelligence Committee. These members, Senators Feinstein, Mikulski, Bayh, and Bill Nelson, have extensive experience on intelligence matters and are respected champions of civil rights and liberties. They chose to give significant weight and deference to the intelligence community on FISA reform, and so did I.
There is near uniform, bipartisan agreement on the need to reform FISA to reflect modern telecommunications and information technology. We must do so in a way that safeguards basic civil and constitutional rights. But we must also remember that the terrorist threat to the nation is extremely serious. I remain fully committed to bringing accountability to this process, and to protecting the privacy rights of all Americans.
What he is saying makes more sense in light of the additional info we have. But I hope he is serious that in the next 6 months, it will be fixed to protect the civil liberties of Americans like me, who make international calls.
As for Kos, I watched him this morning on MTP arguing with Harold Ford. He comes across as arrogant, and at one point admonished Ford to "stop attacking Democrats". This from the guy who posted a diary declaring all the Dems who voted for the legislation to be "cowards" and cavers-in to the Repubs. He argues that Dems shouldn't be afraid to be Dems, but in the next breath any Dem who isn't as far left as he is seems to be considered "afraid to be a Dem". Just what we need, another ideologue.
Um, it's not getting much of a reception over there. I understand this -- when things aren't as black and white as you thought (and I felt that way last night), it takes a while to adjust. The important thing is that the Democrats fix this in the fall.
If there was a real threat, the Democratic bill would have addressed that, so why not pass it? Why did Pelosi have it brought up under rules requiring a two-thirds majority to pass (which it of course fell far short of), then later bring the White House version up with a requirement for only a majority? It's hard to come up with an answer that doesn't involve a significant segment of the congressional Democrats being unwilling to value civil liberties enough to maintain party discipline.
If this was a true emergency, then why couldn't Congress delay its vacation for a while and get something acceptable passed? If the FISA court's ruling was in March, and that's what triggered the urgent need for revision, I don't understand why McConnell waited until July 24 to meet with Congress about it.
If the president is willing to veto any bill he doesn't like (whether he's actually playing chicken with our national security or just putting out convenient terror alerts) and the Democrats are always going to be afraid that they'll be blamed in that case, then I don't understand how you think things will be different in September.
P.S. This whole thing started when bush sent Chertoff out claiming something bad was on the way because of some feeling in his gut.
It is generally useful to know a little bit about a technology before making judgments about appropriate safeguards. Many senators and congressmen have not bothered to seek out technically competent briefers who could explain to them how modern telecommunications networks work and answer their questions about data vacuuming and data mining.
A good place for them to start would be to understand the rudiments of modern packet switching technology. They could also try to get at least a layman's understanding of Asynchronous Transfer Mode (ATM), X.25 networks, and frame relay technologies. They should understand what telecom switches and routers do, and they should also try to comprehend the tremendous bandwith of multiplexed fiber optic cables. Without this kind of basic understanding, our senators and representatives can be easily bamboozled by fast-talkers from the White House and intelligence community.
To put it in a nutshell: modern packet switching technology creates virtual circuits as needed. Even in the midst of a transmission, packets may take different routes depending on load conditions of the network. The modern telecom universe is something of a nightmare for NSA, for it is essentially impossible to predict with certainty what path the next transmission from a targeted entity may take, or even which paths all of the packets in a single transmission may take.
What is the likely industrial age intelligence collection solution to such a problem? It may well be to try to collect as much data as possible at as many telecommunications switches and routers as possible, then store it (at least for a certain time) on massive farms of hard drives, and then try to sift through it using various data mining and link analysis algorithms.
So here is the key consitutional issue: modern telecommunications can make it extremely difficult to target and capture a transmission of interest in real time, much less translate it and analyze it (not all terrorists helpfully communicate in English) in a usefully short time. And just think of the terabytes of data crossing these fiber (as well as satellite, wireless, and copper) international networks. It is very difficult, and often technically impossible, to distinguish among purely domestic communications, purely foreign-to-foreign communications, domestic-to-foreign communications, or foreign-to-domestic communications without getting into fairly detailed scrutiny of the data packets. Solution? Try to collect it all. Theirs. Yours. Mine.
Most Americans who care about Fourth Amendment protections would probably want to have far more rigorous protections in place to prevent mining of this vast data trove for domestic political purposes than have been offered by the "Protect America Act." Is there still a sentient being in America who really believes that Cheney, Addington, Bush, Rove, and Gonzales will place the public interest above their personal/political/power considerations in the treatment and mining of such data? Sadly, 16 Democratic Senators 41 Democratic Congressmen were snookered yet again into thinking so.
One Congressman who actually understands these technologies and their Fourth Amendment implications is Rush Holt, a Democrat from New Jersey who is on the House Intelligence Committee. Before being elected to Congress, Holt was a physicist at Princeton. He cannot be bamboozled on technical issues. Needless to say, Holt voted against the bill in question. If only more members of Congress would seek his expertise and ask him to answer their questions on this legislation, the level of the debate would be raised considerably. Senator Leahy also seems to have at least a layman's understanding of the issues involved. Senator Whitehouse is capable of understanding the technology. The others on the Senate Judiciary Committee? Perhaps not so much. Senator Rockefeller of the Senate Intelligence Committee seems to grasp the issue. Chairman Silvestre Reyes of the House Intelligence Committee? Probably no hope; the man is a dunce. Let us hope that those Senators and Congressmen who really understand the issue can bring Senator Reid (and Webb, and others) and Speaker Pelosi (and at least some of the Blue Dogs) to their level of understanding.
For a less technical summary of some of these issues, here is a good document available from the ACLU.
Also continue to watch James Risen's reporting in the New York Times. Risen seems to have a good historical perspective on what is at stake, and he is not a shill for the White House (beware of some of the editorial doctoring of his stuff, though). Talking Points Memo (and TPMMuckracker) also have had some good coverage, as has Salon.com.
Is it really wise to accept credulously the Bush/Cheney/Addington/Rove/Gonzales spin on issues of such constitutional import? I'm surprised that so many RK'ers seem to think so.
You talk about Congressman Holt and say "If only more members of Congress would seek his expertise and ask him to answer their questions on this legislation, the level of the debate would be raised considerably". Okay, I've never heard of him. Was he then or is he now vocal about this issue? What has he proposed to protect the Fourth Amendment? No one here is against such protections, but it's no more useful to pretend collection of such information is unnecessary than it is for the Bush administration to see a "terrist" under every rock. Neither position is realistic.
Holt was quoted by E.J. Dionne, Jr. in the Washington Post on August 10th. He was also quoted by Mark Mazzetti in the NYT on August 8th. He considered the legislation to be "atrocious."
I was glad to see that our own Rep. Boucher understands the issue and voted against this legislative travesty.
BTW: I do not see anyone arguing that the collection of legitimate foreign intelligence is unnecessary. That is virtually a classic Rovian/neocon diversonary framing of the issue. Our point is that in the conduct of intelligence-related data collection, guarantees of our constitutional rights must not be left merely to the goodwill of apparatchiks working for a "unitary executive"--especially in view of the track record of the current occupants of the White House and Executive Branch.
This statement by Rep. Holt from last fall gives a flavor of his thinking.
You can find more by googling Rush Holt along with any number of relevant search terms that may interest you.
I suspect that there is another dirty little secret--one that may be not be adequately appreciated or debated within the Congress or Executive Branch--at play here: that the stream of data is so broad and deep that it is simply impossible for anyone (NSA, NSA's foreign counterparts, contractor data miners) to filter, process, and analyze the flood quickly in a timely, operationally useful fashion.
After all, much of the data crossing the telecommunications pipelines (SKYPE phone calls, commercial transactions, anything going over a secure http connection) has at last some level of encryption, so an extra step would be required to get past the encryption to the data content. PGP (Pretty Good Privacy) and various other commercial encryption schemes are also out there. Even if NSA has the computers and cryptological skills to crack the widely available methods of commercial encryption, in a saturated telecommunications environment of virtual packet switching, how would NSA even know which messages would most merit the time and energy to collect, decrypt, and analyze? At some point, an intelligent human being has to look at a communication to figure out whether it has any significance. Maybe NSA has a technical answer to this question, but the answer is not obvious to my layman's mind.
Intending terrorists, not being completely stupid, and operating in languages other than English, have probably moved beyond using open codewords like "the wedding" or "the present" in their communications and planning. Though it is now almost six years since 9/11, 2001, I suspect that our intelligence agencies, whether military or civilian, may still be woefully understaffed with competent linquists and substantive analysts with functional area expertise.
Check out Dan Eggen's front-page article on "Lawsuits Shed Light on Spying" in today's WaPo. As information dribbles out to the public, it increasingly appears that the Bush Administration's intent through its use of NSA has been to capture virtually all data transmissions occurring in the U.S., with little regard to any distinction between domestic and foreign.
If under objective scrutiny it turns out that this data collection exercise is hugely expensive while being hugely ineffective in catching and thwarting actual terrorists (except perhaps for some fairly narrowly targeted operations that can be successful because of synergy with on-the-ground law enforcement officials or with traditional human intelligence operations), then to what purpose might this Administration be putting such massive data collections? Remember, this is the "unitary executive" Administration of George W. Bush, Richard Cheney, David Addington, Alberto Gonzales, and--until yesterday--Karl Rove. Would you trust these people with your Constitution? Would you trust them with your personal data?
Could data mining for domestic political advantage be among the answers to that question? I sincerely hope that Senator Leahy and Rep. Holt can lead us to the answers, as well as lead us to credible ways to prevent such abuse, if such abuse has occurred.
I do believe that we must reject the fear-mongers' framing of the issue as doing everything or doing nothing. It is not that simple. We should refuse to let these Orwellian characters dictate that their Newspeak and doublethink vocabulary be used for the debate. What is required is a thoughtful consideration of the issue by Congress, a debate which should be led by Senator Leahy, Rep. Holt, and others who truly understand the constitutional and technical issues.
We in the voting public and blogosphere will be on the sidelines. But at least we can raise a hue and cry when we recognize that we--or our leaders in the Democratic Party--are being snookered yet again by the fear-mongers. Maybe our scribbling, contributing, volunteering, and voting do not in the end do much good, but the alternative is to sit passively and acknowledge defeat. But there are days....
Indeed, as FMArouet suggests, a lack of sophistication may well have deceived or oven duped some votes. Note that US Rep. Rick Boucher, who is expert in communication technology and law, was not (deceived or duped). He voted no.
Still, ignorance is no excuse. I am not as forgiving as the majority on this thread. I believe it's grasping at straws for something to excuse what is inexcusable. Just how much slack are we going to give our reps? Precious much has been bartered and outright handed away. Will they let W. declare martial law because they are similarly fearful and duped? If we don't hold our own side of the aisle accountable, then we are not doing our jobs. Additionally, the likelihood of their handing away more privacy (what's left of it) and more rights increases if we do nothing.
The question is: What is the range of things you will do about it? Just forget about it, continue to blog about it, write to or call our reps, remember it when they want something from us (or not), or use it to affect your primary support/effort? Personally, I haven't written Webb's office yet. But reading this thread has made me more sure that I need to.
Is this battle a hopeless one? Maybe so. Is the game is fixed and unwinnable, is the foe unbeatable, and are the wrongs unrightable?
It is a lot easier to admire Don Quixote de la Mancha than to emulate him.
How many "last, final chances" will progressives give Pelosi and Reid before losing all hope?
In a rational universe we would be seriously addressing our shortcomings and trying to learn from the successes of others instead of merely braying about being "number one."
So there is a possibility for a Plan B or a Plan C. My ancestors figured that out and took the journey in this direction several generations ago.
If the neocons succeed in turning this country into a full-fledged Orwellian national security state, maybe the family journey will ultimately turn into a round-trip. Seriously.
I'll happily take a pint of beer bet from anyone who wants to claim that the House and Senate will fix this in September.
I'm perfectly willing to believe that changes to FISA are required (tho' I'm never going to believe it on the basis of shrill cries of "there's terrists out there!"). So go ahead and make them. But make them in a way that doesn't sacrifice our rights or rely on "trust me" as the check that the Executive isn't pushing ahead and doing it anyway.
It's really not all that hard. And it's really a bit sad to see how committed some folks are to person than to the Constitution (but hey, that's what brings victory in politics lately, and that's what's important, right?).
At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier....
The prelude to approval of the plan occurred in January, when the administration agreed to put the wiretapping program under the oversight of the Foreign Intelligence Surveillance Court. The court is charged with guarding against governmental spying abuses. Officials say one judge issued a ruling in January that allowed the administration to continue the program under the court's supervision.
A ruling a month or two later - the judge who made it and its exact timing are not clear - restricted the government's ability to intercept foreign-to-foreign communications passing through telecommunication "switches" on American soil.
The security agency was newly required to seek warrants to monitor at least some of those phone calls and e-mail messages. As a result, the ability to intercept foreign-based communications "kept getting ratcheted down," said a senior intelligence official who insisted on anonymity because the account involved classified material. "We were to a point where we were not effectively operating."
and this?
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved....
The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil, a task so time-consuming that a backlog developed. "We shoved a lot of warrants at the court" but still could not keep up, the official said. "We needed thousands of warrants, but the most we could do was hundreds." The official depicted it as an especially "big problem" by the end of May, in which the NSA was "losing capability."
After reading that, you're seriously arguing this issue was "easy?"
If the bill was bad and there was a true emergency, the thing to do was to delay the vacation and pass a good bill, not just punt and hope to fix it later. Once you've agreed to the bad bill, you've lost the argument and any moral high ground.
But what, is the problem that in some of these cases, they're listening in on a US citizen, and the warrants are just too much trouble to deal with? Too bad. Don't like it? Change the Constitution.
Yes, it would have been easy to pass a bill that simply provided the authority to address the problem that everyone is claiming existed (and forgive me for being amused at how everyone seems to be taking this at face value). But no, Webb and some of his fellow Dems got cowed into (or simply found it more convenient to) giving the Executive much more than they needed, trampling the Constitution in the process.
So no, it's really not that complicated.
Thanks for raising this very important subject. Your description of what happened is apt.
I am especially disappointed by Speaker Pelosi's performance. She started out in January with great focus and discipline. She may even have succeeded in the April/May time frame (along with SecDef Robert Gates) in diverting the Cheney/Addington twin-headed monster from launching us into an unnecessary war with Iran.
But she and Senator Reid seemed to fumble badly on this "Protect America" charade. Let's see whether she and the Dems can recover in September.
Just a footnote: I remain skeptical about the Administration's framing of the issue on "foreigner to foreigner" warrants. There seems to be much unsaid and distorted on this issue. A warrant should be required only if there is significant involvement by a U.S. entity in the activity. My suspicion is that the real issue is one of comprehensive data vacuuming and subsequent data mining, and the real focus needs to be on ironclad protection of the civil liberties of U.S. citizens and persons who are caught up in the vacuuming and mining. I do not think that it is sufficient to trust, as the White House would have us do under the current legislation, apparatchiks like AG Gonzales and DNI McConnell to preserve and defend our constitutional rights.
I'm just puzzled that the Democrat leadership did not put up a stiffer fight on this issue.
Based on what I've read here, apparently one judge said no - to something - we're not really sure what. If there are now 11 judges on that court, then there are 10 other judges who may have different opinions. Or not.
Look, we can maintain at least the illusion that there's separation of powers, or we can simply toe the line, duck and cover and kiss our constituton goodbye.
Actually, it appears there may be nine, not ten other judges on the FISA court who are open to admininstration ministrations.
Honestly, why have the damn court at all? Can anyone answer that question?
Judge Bauer? Paging Judge Jack Bauer.
I still find it unsettling that foreigner to foreigner calls shouldn't require a warrant--it could be setting a bad precedent--but it would be a lot more agreeable than what was passed.
After reading this piece, it seems that the whole point of forcing the Democrats to pass this bad piece of legislation was to demoralize the Democratic base.
Since the administration is such a dirty fighter, Democrats in Congress should point them out as a way to defend themselves and properly put blame where it belongs.
IT HAS ALWAYS BEEN MY UNDERSTANDING THAT THE FISA LAW GAVE 72 HOURS LEAWAY FOR A WARRENT. IN OTHER WORDS IN A FOREIGNER TO FOREIGNER WIRE TAP, IT COULD BE DONE, BUT A WARRENT HAD TO BE APPLIED FOR IN 72 HOURS. IF THE COURTS WERE BACKED LOGGED THEN IT WAS THEIR PROBLEM NOT THE AGENCY DOING THE WIRETAPPING.
Also remember that the Bush administration politicizes everything. Karl Rove "said he expects Democrats to be divided this fall in the battle over warrantless wiretapping."
Let's prove him wrong by uniting to restore judicial review of domestic wiretapping.
This, after all we learned of the abuses of the CIA, conducting domestic spying, during the Church Committee hearings in the mid-1970s. It was just because of those revelations that FISA was written. Shame on Congress for being bamboozled. Shame on the Democrats for failing to be the opposition party protecting us from a lawless regime. Shame on those Democrats who caved for fearing being demagogued as weak on terror.
Thank you Congressman Boucher for your circumspection and determined protection of all our civil liberties. Just as you voted against the original Patriot Act, you saw through this chicanery as well.