Tuesday, August 21, 2007

More FISA Fear-Mongering by Andrew McCarthy More FISA Fear-Mongering by Andrew McCarthy

Andrew C. McCarthy talks sense on FISA reform in: More FISA Fear-Mongering (the New York Times strikes again). The NYT breathlessly reported that the recently enacted FISA amendment would allow all sorts of implausible incursions into our civil liberties, most of which had nothing to do with international and foreign electronic communications (generically, and not as defined by FISA), the subject of FISA and its recent amendment.

I have gotten a bit tired of hearing about how the "directed" language in the new law can be theoretically, maybe, by Darth Bush (McCarthy's term), perverted to allow indiscriminent tapping of American phones. Never mind that the intelligence community has repeatedly pointed out that they see the language as being essentially equivalent to the "targeted" language of the original FISA. But somehow, it is supposedly possible for a rogue Administration to target Americans by targeting al Qaeda operatives.

Yes, the language may be a tiny bit more lenient than was in effect for interceptions made outside the U.S. (and most of those making these arguments admit that most international communications could be and were tapped "outside" the U.S. when FISA was enacted). But the amendment addressed some real problems with where FISA had gone.

First, the technology had changed significantly since then, to the point where interception outside the U.S. is now technologically infeasible (we are now tapping fiber optics at the switches as the cables come onshore, instead of out of the ether, as was previously done).

Secondly, much purely foreign traffic is intercepted at those same fiber optic switches, as AT&T had kindly routed it through this country, partially at the behest of the NSA (and partially because they are an American company with their infrastructure here). That was fine, since foreign traffic is exempt from FISA - until a FISC judge determined that FISA applies if there is a chance that one end ended up here in the U.S. That might not have been an issue, except that the NSA doesn't always know where both ends are (for example, with satellite phones).

So, if OBL were sitting in his cave on the Afgan/Pakistan border, and used a sattelite phone to call someone, a FISA warrant would now be required, because the NSA couldn't guarantee that the phone call wasn't made from this country.

Those are two big things to keep in mind when talking about the amendment to FISA. First, the big thing it did was change the standard from absolute knowledge to reasonable belief. If they detect OBL, they don't have to worry about whether he sneaked into this country somehow. And that the "directed" language is being interpreted as equivalent to the "targeted" language in 50 U.S.C. 1801(f) (and note that this part of the amendment specifically refers to 1801(f)). The person of interest must be reasonably believed to be outside the U.S. for this provision in the amendment to apply. The idea that someone here can be targeted but the surveillance be "directed" at someone outside the U.S. is just ludicrous. Since "targeted" is really narrower than "directed", this just doesn't work.

Finally, it is only temporary - six months.

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