Constitutionality of FISA to be Reviewed
Steven Aftergood writes on Secrecy News:
A federal appeals court in Oregon will hold a hearing next month on a government appeal of a 2007 judicial ruling that said the Foreign Intelligence Surveillance Act (FISA) is unconstitutional.
The FISA is a statute that regulates domestic intelligence, and generally requires judicial authorization for intelligence search and surveillance within the United States. Critics of Bush Administration electronic surveillance activities such as the “Terrorist Surveillance Program” have argued that they unlawfully circumvented the provisions of the FISA.
But the FISA itself, as modified by the USA PATRIOT Act, is unconstitutional, a federal court ruled [.pdf] on September 26, 2007.
That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act. The FBI later apologized for his mistaken arrest and provided a financial settlement. But Mayfield continued to challenge the legal foundation of the arrest.
More
here.
Why NSA Spying Puts the U.S. in Danger
Ira Winkler writes on ComputerWorld:
As a former NSA analyst, I'm dismayed by the continuing revelations of the National Security Agency's warrantless -- and therefore illegal -- spying. The case involves fundamental issues related to NSA’s missions and long-standing rules of engagement. What's even more dismaying is the lack of public reaction to this.
Fundamentally, this is an issue of law. FISA, the Foreign Intelligence Surveillance Act, was established in 1978 to address a wide variety of issues revolving around Watergate, during which a president used foreign intelligence agencies to collect data on U.S. citizens. As part of FISA, the NSA has to get warrants to analyze and maintain collections of data involving U.S. citizens. FISA has withstood all tests until now, and it involves a fundamental aspect of the U.S. Constitution -- its system of checks and balances.
The FISA law allows NSA to request those warrants up to 72 hours after the fact -- that is, after the data has been analyzed. And lest you think that the courts from which such warrants are requested are staffed by a bunch of liberal, activist, criminal-coddling judges, they have reportedly turned down only five warrants in the last 28 years. So when President Bush says, "If Osama bin Laden is calling someone in the United States, we want to know about it," followed by his nervous laugh, he's laughing at the American public, since "knowing about it" is a totally irrelevant issue. FISA blocks no legitimate acquisition of knowledge.
More
here.
U.S. Government Seeks Broader Tech Snooping Powers
Lisa Vaas writes on eWeek:
The Bush administration is itching to update a snooping law to encompass new technologies, even as a DOJ report shows the FBI is using data mining on a dizzying array of U.S. citizens' non-terrorist activities: Think auto insurance fraud and Medicare claims abuse.
"Today, cellular phones are the size of credit cards, you would be hard-pressed to find a computer with memory less than 512 megabytes and our greatest threats are independent transnational terrorists and terror networks," complained Michael McConnell, director of national intelligence, in a May 2007 column published by the Washington Post.
The law that McConnell and others in the Bush administration want to overhaul is FISA, the 1978 Foreign Intelligence Surveillance Act. The law, originally drafted to prescribe physical and electronic surveillance and spying procedures on foreign powers, came under scrutiny after the New York Times in 2005 chronicled the Bush administration's order for warrantless domestic wiretapping—called the Terrorist Surveillance Program—subsequently carried out by the National Security Agency, following the terrorist attacks of 9/11.
Critics have crossed party lines to accuse the Administration of criminally violating FISA with the Terrorist Surveillance Program. The Bush administration has admitted that it flaunts FISA, claiming that the act is an unconstitutional infringement on executive power and that Congress implicitly amended FISA when it passed the Authorization for Use of Military Force on Sept. 18, 2001.
The Adminstration may well scorn FISA, but it still wants to see it overhauled to cover modern technologies.
More
here.
New FISA Court Judge Appointed
Steven Aftergood writes on Secrecy News:
District Judge Roger Vinson of the Northern District of Florida this month became the newest member of the Foreign Intelligence Surveillance Act (FISA) Court.
Judge Vinson was named by the Chief Justice of the United States to a seven year term on the FISA Court, effective May 4. He replaces Judge Michael J. Davis, whose term on the Court expired this month.
The FISA Court, established by the Foreign Intelligence Surveillance Act of 1978, provides judicial authorization for electronic surveillance and physical searches that are conducted within the United States for foreign intelligence and counterterrorism purposes.
Judge Vinson's appointment has not been previously reported, but it was confirmed for Secrecy News yesterday by Shelly Snook, media liaison and assistant to the chief judge of the D.C. District Court.
More
here.
GOP Blocks FISA Surveillance Extension
J. Taylor Rushing writes on The Hill:
Senate Republicans blocked a Democratic attempt to revive a controversial wiretapping law for 30 days on Monday night, leading to a mini-squabble on the chamber floor over the Bush administration’s program.
Majority Leader Harry Reid (D-Nev.) had asked for unanimous consent for the month-long extension to allow more time for House-Senate negotiations.
Minority Leader Mitch McConnell (R-Ky.) objected, saying the temporary fix was inadequate. The objection essentially blocks Reid’s extension request.
The legislation updating the 1978 Foreign Intelligence Surveillance Act (FISA) has been expired since Feb. 15, when a six-month interim law elapsed.
The House has already passed its version of FISA, but the two chambers have been unable to reconcile their differences over whether to grant telecommunications companies retroactive legal immunity from invasion-of-privacy lawsuits. The House-backed legislation does not include such immunity; a Senate bill that passed by a 68-29 vote on Feb. 12 does.
The move led to a brief exchange between Reid and McConnell, with each leader blaming the others’ party for the impasse.
More
here.
Best FISA Rant Ever: Keith Olbermann
Via Crooks and Liars.
Keith Olbermann’s Special Comment tonight on Countdown was yet another scathing rebuke of President Bush and his lies about the pending FISA legislation and fear tactics during his final State of the Union address earlier this week. Bush has said repeatedly he would veto any FISA legislation that did not include immunity for the telecommunications companies who broke the law and betrayed the American people.
However, as Keith points out, if the president were to veto the legislation and there was another terrorist attack inside the U.S., he, and he alone would be responsible for it — all in the name of protecting huge corporations over the American people he was charged with protecting.
A "must see" video commentary
here.
A Gateway for Hackers: The Security Threat in the New Wiretapping Law
Susan Landau writes in The Washington Post:
Current administration policy is replete with examples of quickly enacted efforts whose consequences led to the opposite effect. (Beware of what you wish for . . . .) With Congress caving last week, the National Security Agency no longer needs a Foreign Intelligence Surveillance Act (FISA) warrant to wiretap if one party is believed to be outside the United States. This change looks reasonable at first, but it could create huge long-term security risks for the United States.
The immediate problem is fiber optics. Until recently, telecommunication signals came through the air. The NSA used satellites and antennas to pick up conversations of foreigners talking to other foreigners. Modern communications, however, use fiber; since conversations don't go through the air, the NSA wants to access communications at land-based switches.
Because communications from around the world often go through the United States, the government can still get access to much of the information it seeks. But wiretapping within the United States has required a FISA search warrant, and the NSA apparently found using FISA too time-consuming, even though emergency access was permitted as long as a warrant was applied for and granted within 72 hours of surveillance.
More
here.
FISA Geek Alert: All Known Changes to FISA Since 9/11
Courtesy of Beverley Lumpkin via The POGO Blog.
David Kris has produced the single most valuable document ever created for the FISA nerd: a copy of the law as originally written in 1978, with all the changes enacted since Sept. 11, 2001, with each change helpfully color-coded (in SIX different colors!) so that you can keep track of what was added or subtracted when. I have been wallowing in it for the past 24 hours and highly recommend it.
More here.
The New FISA Compromise: It's Worse Than You Think
Timothy B. Lee writes on ARS Technica:
Last month, the House of Representatives passed the FISA Amendments Act of 2008, Congress's latest response to President Bush's demands for expanded eavesdropping authority. The Democratic leadership, seemingly intent on avoiding real debate on the proposal, scheduled the final vote just a day after the bill was introduced in the House. Touted by Democratic leaders as a "compromise," it was supported almost unanimously by House Republicans and opposed by a majority of Democrats.
The 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions. This may explain why the telecom immunity provision has received so much attention in the media: it is much easier to explain to readers not familiar with the intricacies of surveillance law than the other provisions. But as important as the immunity issue is, the legislation also makes many prospective changes to surveillance law that will profoundly impact our privacy rights for years to come.
Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire.
More
here.
Countdown: Bush Used Bogus Terror Threat To Scare Votes For FISA Bill
MSNBC Countdown's Keith Olbermann.
Keith Olbermann has been tracking the Bush Administration’s use of trumped up terror alerts to manipulate the American people for the past two years, but in this latest Nexus of Politics & Terror report on Countdown, it appears the president stooped to a new low by using a bogus terror threat that specifically targeted Capitol Hill to manipulate members of Congress just hours before a crucial vote on the FISA bill last August.
According to Rep. Jane Harman (D-CA), Chairwoman of the House Homeland Security Subcommittee on Terrorism Risk Assessment, the Bush administration knowingly used bogus intelligence to make lawmakers believe there was the chance of an imminent attack on the U.S. Capitol, thus frightening them into passing the temporary expansion of his powers to spy on Americans under the FISA act.
More
here.
FISA Revision Called 'Atrocious' Privacy Violation
Monisha Bansal writes on CNSNews.com:
With Congress working on legislation to revise the Foreign Intelligence Surveillance Act (FISA) before the sunset provision in the Protect America Act expires on Feb. 1, privacy advocates say the proposal being offered by the Senate Select Committee on Intelligence is "atrocious."
In August, Congress passed and the president signed the Protect America Act, which allows the attorney general and the director of national intelligence (DNI) to "authorize the acquisition of foreign intelligence information" without the approval of the special court established by FISA.
According to the liberal American Civil Liberties Union, Senate Majority Leader Harry Reid (D-Nev.) is likely to bring an amendment to the floor this week written by the Intelligence Committee.
"We're back pretty much where we were in August," said Caroline Fredrickson, director of the ACLU Washington Legislative Office, during a conference call with reporters.
More
here.
Also: Very good summary of the issues by Ryan Singel over at
Threat Level here.
-ferg
GOP Trying to Sneak FISA Amendment Onto War Supplemental Bill
Klaus Marre writes on The Hill:
Rep. Jerry Lewis (R-Calif.) announced Thursday that he will try to attach a measure updating the Foreign Intelligence Surveillance Act (FISA) as an amendment to the war supplemental bill.
Lewis, the ranking Republican on the House Appropriations Committee, said he would make the move if the war funding bill is taken up by the panel.
“It’s time for the Democratic leaders to put our national security ahead of the desires of trial lawyers and pass the FISA bill that was passed by the Senate,” the lawmaker said. “This Congress should make this legislation one of its top priorities until the intelligence gap is closed.”
Republicans and the White House have engaged in an all-out campaign to get House Democratic leaders to take up a version of the bill that was passed with bipartisan support in the Senate. One of the most contentious issues remaining is whether telecommunications companies should get retroactive immunity if they helped the government with eavesdropping initiatives following the Sept. 11, 2001, attacks. While Republicans support such a provision and it is included in the Senate bill, House Democrats say it needs to be stripped out.
More
here.
Props: Pogo Was Right
Surveillance Budget for FISA Court Gets a Boost
Chitra Ragavan writes on U.S. News & World Report:
With the Bush administration's revelation that it will replace the controversial warrantless surveillance program conducted by the National Security Agency with a plan approved by the Foreign Intelligence Surveillance Act court, the fiscal 2007 budget includes a $3.1 million increase to address what is expected to be a spike in FISA applications.
FISA, the secret court that issues wiretap orders from Justice Department requests to conduct electronic surveillance and physical searches of suspected international terrorists or spies, already has had an increased workload since 9/11.
More
here.
Deletions in Army Manual Raise Wiretapping Concerns
Eric Lichtblau and Mark Mazzetti write in The New York Times:
Deep into an updated Army manual, the deletion of 10 words has left some national security experts wondering whether government lawyers are again asserting the executive branch’s right to wiretap Americans without a court warrant.
The manual, described by the Army as a “major revision” to intelligence-gathering guidelines, addresses policies and procedures for wiretapping Americans, among other issues.
The original guidelines, from 1984, said the Army could seek to wiretap people inside the United States on an emergency basis by going to the secret court set up by the Foreign Intelligence Surveillance Act, known as FISA, or by obtaining certification from the attorney general “issued under the authority of section 102(a) of the Act.”
That last phrase is missing from the latest manual, which says simply that the Army can seek emergency wiretapping authority pursuant to an order issued by the FISA court “or upon attorney general authorization.” It makes no mention of the attorney general doing so under FISA.
More
here.
7th Circuit Ruling Expands Use of FISA Wiretaps
Pamela A. MacLean writes on LAW.com.
Federal prosecutors may use wiretap evidence obtained under the Foreign Intelligence Surveillance Act in spy cases for criminal prosecutions unrelated to the original espionage purpose of the wiretap, the 7th U.S. Circuit Court of Appeals has held.
The ruling is the first outside the special FISA court itself to interpret the law as expanding the ability of prosecutors to use the act in a variety of criminal contexts, according to defense attorney James Geis, a Chicago solo practitioner representing Ning Wen, who was convicted of violating export-control laws.
"Unless there is a constitutional problem in domestic use of evidence seized as part of an international investigation, there is no basis for suppression," wrote Chief Judge Frank Easterbrook in U.S. v. Wen, No. 06-1385.
"I think this holding makes it virtually impossible to challenge a FISA search," said Geis. "This pretty much makes it bulletproof."
More here.
(Props, Pogo Was Right.)
Specter: White House May 'Allow' FISA Wiretapping Review - Update
Allow?
If, as is indeed the law, the FISA "...act requires warrants from the court for intelligence-related eavesdropping inside the United States," then the Bush administration as surely broken the law and should be held accountable. Period.
A Reuters newswire article by Diane Bartz, via The Boston Globe, reports that:
The White House appears to be leaning toward allowing a secret federal court to look at its controversial warrantless wiretaps, a reversal of previous policy, a top Republican senator said on Sunday.
Sen. Arlen Specter, chairman of the Senate Judiciary Committee, had been pressing the Bush administration to seek clearance from the secret Foreign Intelligence Surveillance Act, or FISA, court.
The act requires warrants from the court for intelligence-related eavesdropping inside the United States.
More
here.
Update: The AP newswire
article (via Wired News) on the same topic begins on a much more ominous note:
The White House is nearing an agreement with Congress on legislation that would write President Bush's warrantless surveillance program into law, the Senate Judiciary Committee chairman said Sunday.
More
here.
Shameful: Here's How Your Senators Voted on FISA Bill S. 2248
Yes, you've probably heard by now that our elected representatives in the U.S. Senate voted this morning to pass a FISA bill that provides immunity for telecommunications companies that were complicit in providing your telecommunications & call records to U.S. Intelligence & law enforcement without a court-ordered subpoena or warrant.
Bill S. 2248 was passed by 76 votes in favor, 10 opposed, and 14 abstentions.
In my home state of California, U.S. Senator Diane Feinstein (D-CA), who voted in favor of this legislation, will not be getting my vote next time around.
On the other hand, U.S. Senator Barbara Boxer (D-CA), who voted against it, will be getting my vote.
If you would like to see how your elected representative voted for this, and if they betrayed your trust -- by not listening to the voice of their own constituents -- here is the the roll call.
This is, in my opinion, a very bad turn of events for the privacy of the citizens of this country.
- ferg
Note: The New York Times also has a good summary of the situation here. - ferg
Specter Floats 'Compromise' on FISA Telecom Immunity
Manu Raju writes on The Hill:
The top Republican on the Senate Judiciary Committee is drafting a compromise to resolve the thorny issue of whether to provide retroactive liability protections for the phone companies that allegedly participated in the Bush administration’s secret wiretapping program.
At a markup on a bill to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), Sen. Arlen Specter (R-Pa.) plans to offer an amendment that would make the federal government — instead of the phone companies — the defendant in about 40 pending lawsuits across the country.
The mark up starts Thursday and will continue next week.
More
here.
Note: SAY NO! to any compromise on telecom immunity.
- ferg
Carriers Try To Avoid The Warrantless Eavesdropping Spotlight
Richard Martin writes on InformationWeek:
As Congress pushes forward in its effort to bring some visibility to the Bush Administration's warrantless-wiretapping program, the nation's major telecom companies find themselves in increasing danger of having their own role in the program exposed in court.
Last week both the U.S. House and Senate pushed forward versions of the bill renewing the 1978 Foreign Intelligence Surveillance Act (FISA) that would not include so-called "retroactive immunity" for the carriers who acceded to White House demands for customer records of phone calls and Web-surfing activities -- usually without warrants or subpoenas -- in the last few years. President Bush has repeatedly stated that he will not sign a FISA renewal that does not provide the large telecoms with legal cover.
More
here.
FISA Fact Check: Setting the Record Straight on the White House
Via ACLU.org.
As the House of Representatives takes the time it needs to negotiate a bill to amend the Foreign Intelligence Surveillance Act (FISA), the White House has launched a public assault on the legislative body. The administration claims that the House has endangered the country by letting the Protect America Act (PAA) expire and should pass the bill already approved by the Senate. The Senate bill, however, is unconstitutional and contains immunity for the telecommunications companies that aided the president’s warrantless wiretapping program. The American Civil Liberties Union (ACLU) is urging the House to continue to stand strong for the Constitution.
In a February 22nd letter to the House Permanent Select Committee Chairman Silvestre Reyes, Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell made several misleading claims. A corrective statement was released by the Justice Department and Office of the Director of National Intelligence regarding the cooperation of “private partners” the following day. Here, the ACLU refutes some of the administration’s arguments.
More
here.
