Understanding Recent Changes to FISA — A Visual Guide (Flowchart) | Ketchup and Caviar
“Ketchup and Caviar” (which is a euphemism for “West and East”, one would guess) has put together this wonderful guide for how the government decided we were scared enough as a people to accept them monitoring everything we say. But hey, they only keep the parts where people say (or it sounds like they say) something about the terrorism and/or terror-related stuff (said stuff to be slowly expanded to drugs, crimes, and then finally pr0n).
Go and look at the charts. Pay special attention to the loopholes. The guys who worked on this stuff were pretty smart and know how to build in loopholes (like the ones they built at Guantanamo to allow for torture).
Here’s the gist of it…
What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted.
On the face of it, this new loophole might not seem to be such a big problem, barring the facts of a) retroactive telecom immunity and b) the implication that Bush will never be held accountable for numerous felonies. Unfortunately, it also really is, as far as I can tell, a back door to greatly expanded wiretapping powers. Beyond the obvious fact that it requires only certification and loose judicial review rather than a warrant, it does so in the following way:
- It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)
- It requires the cooperation of telecoms in these efforts
- It eliminates of the need to specify a particular email address or phone number to be wiretapped
- 1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage. There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.
- The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.
- It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.
I have to say I’m really unhappy about this one.
There’s been some other good news recently and hopefully I can get to post some of that today, but this one sucks. And I’m very unhappy with Obama for supporting it….especially because he said this…
The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.
No one should get a free pass to violate the basic civil liberties of the American people – not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.
…back on January 28, 2008.
And then did this last month.
Sen. Barack Obama (D-Ill.) today announced his support for a sweeping intelligence surveillance law that has been heavily denounced by the liberal activists who have fueled the financial engines of his presidential campaign.
In his most substantive break with the Democratic Party’s base since becoming the presumptive nominee, Obama declared he will support the bill when it comes to a Senate vote, likely next week, despite misgivings about legal provisions for telecommunications corporations that cooperated with the Bush administration’s warrantless surveillance program of suspected terrorists.
In so doing, Obama sought to walk the fine political line between GOP accusations that he is weak on foreign policy — Sen. John McCain (R-Ariz.) called passing the legislation a “vital national security matter” — and alienating his base.
“Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,” Obama said in a statement hours after the House approved the legislation 293-129.
And so the virgin-fan portion of my Obama love passes into the past. I ahte to see him reverse so plainly on this topic, yet I can understand why he felt the need to. I hope he got bad advice on giving in to this and didn’t make the decision himself. This was exactly the kind of change we needed, Mr. Obama.
The national security thing is bullshit. People are not that scared. it’s not the trump card it was in 2004. Be honest, dammit.