[NYTr] Congress to Allow Gonzales to Issue Surveillance Warrants

[All the News That Doesn't Fit]

The Huffington Post - Aug 3, 2007
http://www.huffingtonpost.com/shayana-kadidal/congress-to-allow-gonzale_b_58983.html


Congress to Allow Gonzales to Issue Surveillance Warrants

by Shayana Kadidal

A story has emerged this week that seems to have escaped the
headlines in the major papers entirely: the Foreign Intelligence
Surveillance Court, which had approved of some close variant on
the NSA Program in January, changed its mind sometime in the last
few months and decided the program was illegal under FISA. Only
Newsweek and the blogosphere seem to have found the story.

A few hours after the January 17 announcement that the
administration had convinced a single judge on the FISA court to
issue a series of surveillance orders allowing the administration
to carry out the NSA Program in almost exactly the same manner as
before, I put up this post arguing that it was very likely these
"innovative," "complex" new orders were very likely illegal --
that is, to the extent that these warrants "authorized the
president or executive officials to determine on their own when
there is probable cause ... are general warrants, outside the
scope of what FISA allows judges to approve, and are illegal."

Now it appears another FISA judge agreed with me. Orders from the
FISA Court typically last only for a maximum of 90 days, after
which the administration must return to the court for renewal.
However, those applications typically are rotated to different
judges on the eleven-member court. The original orders were
issued by a single judge on January 10, 2007; it has been a bit
more than180 days since then, so the administration would have
had to seek at least two renewals from different judges since
then. Apparently, "[o]ne FISA judge approved this, and then a
second one didn't," as one official source told the L.A. Times.

Great news, right? Yes, it likely means that a judge has finally
ruled that the NSA program is illegal (although the whole FISA
court process is secret, so only the administration and a few
high-ranking Congressional intelligence committee leaders know
for sure). And sure, that's quite satisfying given that our
challenge to the Program, Center for Constitutional Rights v.
Bush, has been passed around by the federal courts like a hot
potato, and the ACLU's simultaneous challenge was dismissed on
appeal on standing grounds, allowing the two republican judges to
duck the merits (though the ACLU may yet appeal). But all
thinking beings knew the program was illegal already.

Congress, on the other hand, still needs convincing.

A new bill, proposed by the administration and being rushed
through both houses in the last week in an apparent deal with
Democratic leaders, would allow the administration to set up
whole programs of surveillance, without prior approval of the
FISA court, so long as those programs operated under internal
rules designed to capture communications where both parties are
"reasonably believed to be outside of the United States." (One
supposed "safeguard": such programs may only be carried out
through a telecommunications company - as if AT&T and Verizon
have our privacy interests at heart!) Who would get to authorize
these programs of surveillance, lasting up to a year? Who else:
Attorney General Alberto Gonzales.

That's right. The same trustworthy official who insisted that the
single presidential order issued by the President after 9/11,
authorizing the NSA to leave no American unheard, actually
authorized not one program but a whole slew of separate programs.
So that when Gonzales told Congress that "the" NSA Program was
narrowly tailored at Al Qaeda suspects -- when in fact this week
the papers have all reported that NSA engaged in massive data
mining -- he wasn't lying because he was only talking about one
of many types of surveillance programs authorized in that single
order, the one admitted to by the administration in December
2005. (And all the rest, of course, are still so secret he can't
even describe them to Congress.)

Certainly the stated purpose of the bill is to allow the
continued interception of calls between two overseas callers that
happen to travel through electronic switches inside the United
States. (Currently, such calls are governed by FISA if they are
intercepted in the U.S.) James Risen's book, published weeks
after he and Eric Lichtblau broke the NSA story in the New York
Times, revealed that many purely international calls - someone
outside the U.S. calling another person outside the U.S. - route
through circuits located in the United States. As odd as it may
seem, with fiberoptic signals traveling at the speed of light,
this is often the easiest route for calls and email to take.
Thus, to give just one example, almost all calls from the Middle
East to Asia route through the United States, rather than taking
a geographically-direct line. Indeed, our government has
encouraged this technological development because it puts the
power to surveill foreign communications within the hands of
American companies. (Before the fiberoptic era, some of these
calls went thru satellites, and those signals could be picked up
by government listening stations located outside of the US, thus
skirting FISA.)

However, it's hard to imagine that the administration couldn't
get FISA warrants for such calls if they really wanted to. The
FISA court processed 4,248 applications from the administration
in 2005-06, and rejected one of them (and that one only in part).
The most likely reason NSA doesn't want to go thru FISA for even
this mainly-international part of their eavesdropping programs is
likely twofold: First, they may want to listen to a huge mass of
international calls where they have absolutely no evidence that
either of the overseas parties are linked to terrorism - not even
enough to meet the easy FISA standard. And second, that broad
brush may also be imprecise enough to inevitably gather in a
decent number of calls with one or both ends inside the United
States.

This conclusion is reinforced by reading between the lines of the
FISA modernization bill proposed by Senators McConnell and Bond.
This version has no sunset provision making the whole law
automatically expire at the end of six months, as Sen.
Rockefeller's proposal supposedly has (full disclosure: I haven't
yet seen his version). Instead, after six months the FISA court
gets to review any programs of surveillance the Attorney General
has approved of, to see if the court thinks they are "reasonably
designed" to capture communications of "person[s] reasonably
believed to be outside of the United States." Between those two
"reasonably"s is a vast margin for error, into which any number
of domestic communications could be swept up. Again, that may
very well be the goal here.

All of these "FISA modernization" bills are poorly thought-out
and have been rushed through Congress in the last two weeks of
the current session (despite the fact that some reports have the
FISA court reversal happening several months ago). The wonderful
folks at the Electronic Frontier Foundation have an action alert
posted here, so you can call your local Congressfolk and let them
know how you feel about replacing federal judges with the
President's Consigliere, Alberto Gonzales.

Meanwhile, our legal challenge to the NSA Program is finally
closing in on a decision. The new judge in the case will hear
oral arguments next Thursday, August 9th, in San Francisco. Our
latest brief, arguing that the case did not become moot after the
January 10th FISA Court orders, is here.

Thanks for reading. Now go give your elected reps a piece of your
mind!