In my interview with John Brennan, the former director of the
This position differs from Obama's. He voted to strip an immunity provision out of a bill to amend the Foreign Intelligence Surveillance Act, which the Senate has passed. Obama did not vote on the final bill, which does contain an immunity provision.
Brennan deferred to the Obama campaign to articulate the Senator's current position on immunity. A spokesperson told me, "Senator Obama opposed the retroactive immunity provisions in the FISA bill, indicating that is more appropriately a decision for the Judiciary."
Labels: FISA, Law, NSA surveillance, Politics
This week, I sat down with John Brennan, the current chairman of the Intelligence and National Security Alliance. Brennan, who was the first director of the National Counterterrorism Center, is now advising Sen. Barack Obama on intelligence and foreign policy. Brennan is also the president and chief executive officer of The Analysis Corporation, headquartered in McLean, Va., which does a great deal of work for the intelligence community.
In our interview,
Q: Are we hearing a sufficient level of debate and distinction among the candidates of their various national security and counterterrorism positions?
Brennan: I think we are hearing some of that debate. And that debate is going to intensify as we get closer to the election.
There has been a fair amount of discussion, particularly on the terrorism front, about the different types of approaches. But I think it's mainly at the strategic level.
The intelligence business is a very complicated one, and I think a lot of the nuances may be lost on people. It's difficult in a presidential debate to really get into those intricacies.
I think there's a real issue related to some of the approaches that the next administration will have toward some of those countries, in particular, that still pose national security challenges to us -- for example, Iran, and whether or not there needs to be some initiative on the part of the United States to see whether there's some way to bridge the gap, or whether we should maintain a confrontational posture toward Iran.
Senator Obama and Senator [Hillary Rodham] Clinton have expressed an interest in trying to reach out, even to our adversaries. There are differences between those two as to when the president should get engaged.
Q: As a counterterrorism professional, is there one path that you see as more productive?
Brennan: I think that what we need in our quiver are many different types of arrows. We certainly need to have a military arrow. We need to have an intelligence one. But we need to have a diplomatic one. We need to have foreign aid. There needs to be a comprehensive set of approaches. A lot of these issues, including counterterrorism, cannot be solved with kinetic force.
I am a strong proponent of trying to focus more of our efforts on the upstream phenomenon of terrorism. I make the analogy to pollution. We learned that pollutants kill us when they get into the water we drink or the fish we eat or the air we breathe. But I think we also learned that we have to go upstream to identify and eliminate those sources of pollution. Terrorism is a tactic, and we have to be more focused upstream. Since 9/11, understandably we've focused downstream, on those terrorists who might be in our midst or trying to kill us, the operators. I think there needs to be much more attention paid to those upstream factors and conditions that spawn terrorists.
We also have to have a full discussion about the appropriate techniques we're going to use when individuals are captured or detained. But we have to be looking at what are those foreign policies, aid programs, international efforts that we need to be engaged in, that are going to try and stem the flow of those terrorists further upstream. I think a lot of our resources have been dedicated to that downstream phenomenon; I think the
Q: What is the appropriate government agency to handle that?
Brennan: This is an issue the government is grappling with. A lot of the issues right now fall between the Department of State and the Department of Defense and Commerce and others. I think as we deal with these transnational issues, we need to bring to bear those capabilities that exist in different agencies. The
Q: People like you have talked about the need to do this for some time. Why haven't we seen this take hold as an ethos in government?
Brennan: There are a number of factors. One is, it's really, really hard. It addresses legacy institutions and architectures and ways of doing business. In
Q: Then what will it take to finally push this through and make agencies feel compelled to change?
Brennan: It certainly isn't something that should be done quickly or without appropriate thought. I'm an advocate of having a review of the
Q: Would it make sense then to make the Director of National Intelligence more like the FBI director, someone who's not necessarily going to leave when the administration changes?
Brennan: I'm an advocate of having term appointments for the Director of National Intelligence. I think it makes sense. But the intelligence community is a subset of the broader national security establishment, which is a subset of the broader
Q: In your estimation, where is the threat level of terrorism today versus where it was right after 9/11? How big is the threat domestically? How has it changed?
Brennan: There are two sides to that coin. Whenever you do a net assessment, you look at the threat and the vulnerability. Let me take the vulnerability side. A lot has happened in the past six years in terms of making the homeland a much less hospitable environment for terrorists to ply their trade. We should feel good that our borders are not as porous. There's a much more substantial watch-listing effort. And a much better capability to detect terrorists and terrorist activity within our borders.
That said, on the threat side, while Al Qaeda, the organization, has been badly bloodied since 9/11, they still retain a potentially lethal capability. There has been a metastasis. Al Qaeda has manifested itself in a lot of different countries and communities, and it's a movement that continues to be grown and fueled by a number of factors.
One, is, since the collapse of the Soviet Union, we no longer have this bipolar world where you had the
Q: Compare our ability to counter ideologies versus our tactical capabilities to collect more intelligence, to share it, to do more sophisticated things with it.
Brennan: I think unfortunately we have been way behind the curve as far as the public relations campaign -- making sure the image of the
Q: In the 2004 campaign, it seemed you had on one hand President Bush talking about downstream efforts, and then John Kerry articulating something more like the public diplomacy approach. It became a partisan division: that if you were for public diplomacy, you were weaker and identified with Democrats, and if you were on the Republican side, then you were with the president and fighting the fight. It seems not that pronounced this time, and that the candidates are talking more about combating ideologies. Is there still a divide between hard war and soft war?
Brennan: I think there is a divide. Obama is a good example in terms of the different approaches between the parties. In the articulation of the public effort, there needs to be the companion discussion about the need to act forcefully to ensure that
Q: Assess the debate in Congress and with the administration over reforming the Foreign Intelligence Surveillance Act. [Democratic lawmakers allowed the temporary extension of that law, the Protect
Brennan: There is this great debate over whether or not the telecom companies should in fact be given immunity for their agreement to provide support and cooperate with the government after 9/11. I do believe strongly that they should be granted that immunity, because they were told to do so by the appropriate authorities that were operating in a legal context, and so I think that's important. And I know people are concerned about that, but I do believe that's the right thing to do. I do believe the Senate version of the FISA bill addresses the issues appropriately. [Director of National Intelligence] Mike McConnell, I think, did a very good job trying to articulate the distinctions between the old FISA law, the FISA understanding under the Protect America Act, and then the House and Senate versions.
There are many types of scenarios for signals [for example, telephone calls and e-mails] to be accessed. But whenever this happens, there needs to be some substantive predicate, a probable cause, that someone is being targeted appropriately. There is an important issue about timeliness. And even though you can go through the FISA process, particularly when you're dealing with terrorism issues, there needs to be an understanding that intelligence agencies can move quickly if certain predicates are met. We shouldn't be held hostage to a complicated, globalized [information technology] structure that puts up obstacles to that timely collection. I think there are some very, very sensible people on both sides of the partisan divide trying to make this happen. And it's unfortunate that it's become embroiled now in a partisan debate in some quarters. But I think that's expected in any election year, especially one like this.
Q: So how do we get to the point where the public has reasonable assurances that what an intelligence agency does to determine probable cause, or that predicate, is based on sound technique?
Brennan: Maybe there needs to be a system of executive, legislative and judicial representatives who are going to oversee and ensure that this moves along the right path. It really takes those three legs of government to make sure there aren't advertent or inadvertent abuses.
You can have FISA judges and representatives from Congress, not to routinely review those individual requests [for surveillance], but the process, the criteria, and to make sure it's being followed in a strict fashion.
Q: You know that one big debate about FISA is the question of balancing security and privacy and civil liberties. Speaking as someone who has spent your life in counterterrorism, what do the terms "privacy" and "civil liberties" mean to you, and what is that balance?
Brennan: First of all, privacy and civil liberties mean so many different things to different people. There are people on one end of the spectrum that don't want to have any government interference or insight into what you're doing.
To me, I think the government does have the right and the obligation to ensure the security and safety of its citizens. If there is probable cause, reasonable suspicion, about the involvement of a
It really gets back to that issue of what is the substantive predicate. ... If we know there's a terrorist overseas that has been involved in activities, but he's also an import-export dealer, and he reaches out to Shane Harris because you happen to be an importer of stuff -- you're a U.S. citizen -- and we can see there's contact going on there, well, is that sufficient to give us reasonable suspicion that Shane Harris is involved in something? And Shane Harris happens to be in touch with somebody in his neighborhood that has a past record in engagement in some type of things. So there is going to be a judgment call here.
And what I think is important is that there needs to be an airing of this issue, public hearings that Congress can hold. You can't explain the issue in such rich detail that you can say exactly where that line is going to be drawn. But there needs to be an articulation of those triggers that the American people overall feel, yes, that's the right thing for the government to do.
You don't want to just troll and with a large net just pull up everything. There are technologies available to pulse the data set and pull back only that which has some type of correlation to your predicate.
Q: Is this the difference between the government controlling information, locking it down, and having controlled access to certain data sets which do exist?
Brennan: Right. And I would argue for the latter. Private sector companies can do things the government is unable to do, for marketing to their clients. I would argue the government needs to have access to only those nuggets of information that have some kind of predicate. That way the government can touch it and pull back only that which is related. It's like a magnet, set to a certain calibration. That's what I think we need to go to.
In the immediate aftermath of 9/11, the threshold, quite frankly, was low, because we didn't know the nature of the threat we faced here in the
These are things that need to be discussed openly -- not to the point of revealing sources and methods and giving the potential terrorists out there insight into our capability -- but to make sure there is a general understanding and consensus that these initiatives, collections, capabilities, and techniques comport with American values and are appropriately adjusted to deal with the threat we face.
Q: How does the next president go about doing that?
Brennan: It's going to be a real tough job. Even though people may criticize what has happened during the two Bush administrations, there has been a fair amount of continuity. A new administration, be it Republican or Democrat -- you're going to have a fairly significant change of people involved at the senior-most levels. And I would argue for continuity in those early stages.
You don't want to whipsaw the [intelligence] community. You don't want to presume knowledge about how things fit together and why things are being done the way they are being done. And you have to understand the implication, then, of making any major changes or redirecting things. I'm hoping there will be a number of professionals coming in who have an understanding of the evolution of the capabilities in the community over the past six years, because there is a method to how things have changed and adapted. My advice, to whoever is coming in, is they need to spend some time learning, understanding what's out there, inventorying those things, and identifying those key issues or priorities that they have -- FISA or something else. They need to make sure they do their homework, and it's not just going to be knee-jerk responses.
Q: In other words, don't come in and do a housecleaning?
Brennan: Right -- not just in terms of people, but also programs. You don't want to create upheaval, because it will create a disruption in the system. There are still a lot people who say we have to implement all of the recommendations of the 9/11 Commission. I have problems with some of those, because they're not really anchored in reality. Sometimes a superficial understanding of a problem leads one to making superficial decisions.
Q: It seems unlikely that any of the leading candidates would come in and dismantle things. They're fairly savvy to the kinds of things you're talking about. Is that the case, or is there still a risk there will be a political calculation, in that the next president will need to make a demonstrable effort to wipe the slate?
Labels: CIA, Director of National Intelligence, FISA, Homeland Security, Interviews, Management, NSA surveillance, Politics, Terrorism, Transition of Power
"All of our legal architecture is founded on the notion that telecommunications intercepts involved putting bugs in walls or hooking interception devices to pairs of copper wires."
Sound like a familiar complaint? It should, if you've been following the debate to amend the Foreign Intelligence Surveillance Act. But this quote comes from one of our neighbors to the north.
Jack Hooper, a former deputy director of the Canadian Security Intelligence Service—basically, their CIA—says that the nation's wiretapping law is outdated, and that it's inhibiting Canadian intelligence’s ability to monitor suspects abroad.
In something of a twist on the U.S. debate, a Canadian Federal Court judged ruled that a number of suspects CSIS wanted to monitor were enough of a threat to bug in Canada, the court had no authority to order a wiretap of Canadian citizens abroad.
According to the Globe & Mail, whose Colin Freeze (btw, how cool is that name?), interviewed Hooper, "Counterterrorism agencies have spent years hoping to run wiretaps against Canadian suspects who live abroad. Yet a lingering loophole means the spies continue to go 'blind and deaf' whenever Canadian targets board outbound planes."
"Technically we can do it, but legally we can't," Hooper says.
Listen to all the parallels between the Canadians' conundrum and the Americans'.
Mr. Hooper argued that the country's spying laws are legacies of an analog age, hampering investigations in an era of mobile phones, the Internet, cheap jet travel and so-called "homegrown" terrorist threats.
"God forbid. If something really bad happens, the question will be asked: 'What were you doing with this guy when he was in Country X?'" he said. "And we'll say 'Well we could have covered him, but we were proscribed by law.' "
Canada's equivalent of the National Security Agency apparently can lend a hand sorting through signals intelligence to domestic law enforcement agencies. As long as the intel was obtained legally, the cooperation is allowed. As the Globe & Mail reports, CSIS' attempt to get a warrant for overseas surveillance "was an attempt to further marry the sister agencies' capabilities."
Labels: FISA, Law, National Security Agency, NSA surveillance
Defying expectations, the House adjourned for recess Thursday and will let the Protect America Act expire tomorrow. Unwilling to try and iron out differences between their bill and a version passed this week by the Senate, lawmakers will take up the thorny issues of telecom liability and oversight of intelligence surveillance at a later date. I don't think anyone would have predicted that in a blinking contest with the White House, Nancy Pelosi would emerge the victor. But here we are.
Senior intelligence officials, including the director of national intelligence, have been making the media and talk show rounds. They're being challenged on the question of whether intelligence activities will cease when the PAA expires. Surveillance already in place will continue, but the intelligence community will have to go through the "old" process of obtaining warrants if they want to start new surveillance. Those rules will be dictated by the Foreign Intelligence Surveillance Act (FISA), barring any orders to the contrary by the president—and don’t count that out.
The big question, though, seems to be whether or not the telecom companies assisting in any new surveillance think they will have legal protections going forward. I have pinged some national security lawyers on this, and the consensus is that they would have immunity for whatever they're doing now under PAA, and that said immunity would continue until those activities stop, regardless of whether the law is in effect. (Surveillance authorized and conducted under PAA can continue uninterrupted for one year.) But presumably any new surveillance would not have immunity, since it would be taken up under FISA.
Think of it this way. It's like giving a high-school student a permanent hall pass during third period French, but not during fourth period chemistry. The companies will find themselves now in the position of operating different kinds of surveillance under different standards and with different protections. Democrats have a point that letting PAA expire will not bring the government’s intelligence efforts to a halt. But letting the law expire does nothing to clarify the rules of the road.
Labels: Director of National Intelligence, FISA, Law, NSA surveillance, Politics
Comments by House Majority Leader Steny Hoyer suggest that Democrats might be preparing to let the Protect America Act expire this week. They would then use the next few weeks to pass a longer-term law.
Voice of America has a roundup of member positions this morning, and quotes Hoyer.
Hoyer asserted to reporters that even if the foreign intelligence surveillance law [PAA] expires, Americans will not be in danger and the intelligence community will be able to continue intercepting communications of suspected terrorists.
Expressing disappointment with the vote [yesterday not to extend PAA for 21 days], Hoyer does not expect Democrats will attempt another short-term extension, although he wouldn't rule this out, saying Democrats will use coming weeks to work on a bipartisan bill acceptable to President Bush. "In the event that the Protect America Act is not extended, we nevertheless intend to use the next 21 days for the same purposes, that is to try to see if we can reach agreement between the House and the Senate, on a bill that would enjoy broad support in the House and the Senate,” he said.
Interesting. I had predicted that the Dems would vote for the Senate bill that passed earlier, but Hoyer is certainly putting another route out there. This move would, of course, inspire the wrath of Republicans and the White House, but that would presumably inspire Democrats to work quickly on a new law. I still think the Dems will vote to pass the bill this week, but we’ll see.
IN THE WEEDS CONTENT: To clear up some of this business about whether surveillance activities will be put at risk if the PAA is allowed to expire. Here's how this works. Under the law, surveillance activities are conducted per the authorization, or certification, of the attorney general and the director of national intelligence. Essentially, they identify targets, and the intelligence community starts monitoring them. That surveillance is allowed to continue uninterrupted for one year. It does not expire when the PAA expires.
So, for example, if the government begins a new surveillance today, that surveillance can continue until February 14, 2009. It would not have to be shut down at the end of this week, when the PAA expires. And it’s important to note, what’s included in said surveillance is classified. But based on the law, and a lot of reporting, we know that the intelligence community is looking at whole groups of communications; we’re not only talking about single wiretaps here.
Now, if the PAA expires, the government would have to begin any new foreign intelligence surveillance under FISA. In other words, they'd have to go to a judge before they begin surveillance, which would be limited to individual targets and would be subject to the same rules of the road that were guiding surveillance before PAA was enacted. When intelligence officials say that without PAA their efforts will be hindered, that’s because they would be slowed down, legally and bureaucratically. Remember that when the National Security Agency’s warantless surveillance program was revealed, senior officials said that they had to go around FISA because that law was unsuited to the technology landscape—full of cell phones, e-mails, instant messaging—and to their need to engage in “hot pursuit” of suspected terrorists. There are lots of other reasons officials don’t want to revert to FISA, but for immediate purposes, this is probably the most important.
It's not clear whether or not the secret orders the president issued in October 2001—the ones that kicked off the NSA’s warantless program—would come into play if PAA were no longer in existence. I have to presume that the president could issue new orders if he felt that was necessary, to continue surveillance activities in lieu of the PAA. Bottom line, our intelligence-gathering efforts are certainly tied up in this law, but they are not hanging on it.
Labels: Director of National Intelligence, FISA, Law, National Security Agency, NSA surveillance, Politics
The House voted down a Democratic measure that would have extended the Protect America Act for another 21 days. Joining the unanimous Republican vote were 34 Democrats (list below). In breaking ranks, they have positioned the House to take up a Senate bill that makes major changes to the Foreign Intelligence Surveillance Act, and which passed yesterday evening by an overwhelming majority. The President wants to sign that bill immediately.
It’s increasingly unlikely that the House won't pass the legislation, which includes immunity for telecom companies that helped the government conduct electronic surveillance inside the
Given House Intelligence Committee Chairman Silvestre Reyes' rather tepid remarks on immunity yesterday, I doubt the House will put up much of a fight. The Democratic split today shows that the chamber doesn't have the votes to fend off the Senate bill. More importantly, it will be seen as a revolt and evidence that House Speaker Nancy Pelosi and Senate Leader Harry Reid have failed to hold a coalition against the Bush administration on intelligence activities that the Democrats have protested for more than two years.
The Protect America Act expires on Saturday. The ACLU has just called upon House members to let it expire, a game of chicken that Democrats have shown zero willingness to play. I think we'll have a new law on the books before the week is through.
I note, however, that they were still breaking with their party, and, whether intentionally or otherwise, helping force the House to act on the Senate bill this week.
Dan Boren (OK)
Leonard Boswell (IA)
Michael Capuano (MA)
Jerry Costello (IL)
Peter DeFazio (OR)
Lloyd Doggett (TX)
Bob Filner (CA)
John Hall (NY)
Maurice Hinchey (NY)
Rush Holt (NJ)
Dennis Kucinich (OH)
Barbara Lee (CA)
John Lewis (GA)
Tim Mahoney (FL)
Jim Moran (VA)
Christopher Murphy (CT)
Patrick Murphy (PA)
Frank Pallone (NJ)
Donald Payne (NJ)
Collin Peterson (MN)
Steven Rothman (NJ)
Loretta Sanchez (CA)
John Sarbanes (MD)
Jan Schakowsky (IL)
Jose Serrano (NY)
Tom Udall (NM)
Tim Walz (MN)
Maxine Waters (CA)
Mel Watt (NC)
Lynn Woolsey (CA)
David Wu (OR)
Labels: Director of National Intelligence, FISA, Law, National Security Agency, NSA surveillance, Politics
Sens. Hilary Clinton and Barack Obama will avoid a spate of weak-on-terror ads by John McCain or his surrogates, particularly those alleging the senators voted to deny intelligence agencies the power to monitor terrorists’ phone calls or e-mails. That's because when time came to vote on a new intelligence surveillance law, the presidential candidates didn't vote.
The Senate passed S. 2248, the FISA Amendments Act, by an overwhelming majority of 68 to 29. Clinton and Obama were two of three senators listed as "not voting." Republican Lindsey Graham was the third. John McCain, the presumed Republican presidential nominee, voted in favor of the bill.
As I noted earlier today, Clinton didn't vote on the most controversial amendment to the bill, granting immunity from lawsuits to telecom companies that assisted the government with warantless surveillance activities. That amendment passed and is in the final bill that now heads to the House. (Obama voted against immunity, McCain for it.)
The Clinton campaign told Marc Ambinder at The Atlantic, "Senator Clinton was unable to vote earlier, but she has made her strong opposition to this legislation crystal clear." The senator was in Texas campaigning.
The FISA Amendments Act was arguably the most important piece of national security legislation taken up by the Senate in the past year. Presumably, the Democratic candidates’ non-votes will shield them from Republican accusations that they voted against the intelligence community. Maybe they saw the RNC Daisy ad. There’s also a decent chance that Obama and Clinton, despite statements to the contrary, actually think the Senate has passed a decent bill, one that a future president would find advantageous.
Labels: FISA, Law, National Security Agency, NSA surveillance, Politics
With apologies to Death Cab for Cutie.
The Senate has passed a bill that amends the Foreign Intelligence Surveillance Act (FISA) and offers immunity to companies that assisted the government with electronic surveillance after the 9/11 attacks. Now it's onto the House, which has already passed its FISA fix, without the immunity clause. What are immunity’s chances of survival?
Well, House Intelligence Committee Chairman Silvestre Reyes, D-Tx., has just released a telling statement. The meat is in the second paragraph.
Last November, the House passed strong legislation that would modernize our surveillance authorities to monitor terrorists abroad while preventing government spying on Americans. As we begin to negotiate with the Senate, I plan to advocate strongly for the House bill, which contains important protections for the constitutional rights of AmericansNo passionate opposition to immunity. No defense of the House's previous vote not to grant it. "It will take some time."
We have also begun to review the documentation provided recently on the alleged role played by the private sector in the President’s warrantless wiretapping program. These documents raise important questions, and it will take some time to gather enough information to make a determination on the issue of retroactive immunity.
This is a far cry from the stand that Democrats in the Senate took earlier today, when they tried to strip immunity from the bill that now goes to the House. Immunity is looking mighty healthy. (BTW, when the Senate Intel Committee looked at those documents Reyes is reviewing, they came down in favor of immunity.)
In related developments, House Judiciary Committee Chairman John Conyers,
As for Reyes' assessment that it's going to take some time to hash through said documents, the House has until Friday. That's when the latest extension of the Protect America Act, the temporary grant of warantless surveillance authorities, expires, and the White House has said it will not approve any more of them. Unless the Dems are prepared to face the onslaught of charges that they're letting down the country's guard against terrorists, look for a final bill before the end of the week.
Labels: FISA, Law, National Security Agency, NSA surveillance, Politics
The Senate has voted to grant immunity to telecommunications companies that assisted the government with electronic surveillance in the wake of the 9/11 attacks. Here's the roll call of votes.
The immunity amendment is part of the Senate Intelligence Committee's bill to modify the Foreign Intelligence Surveillance Act. The three senators running for president split over the immunity amendment.
Sen. Obama voted to strip it (so, he voted for no immunity).
Sen. McCain voted not to strip the amendment (voted for immunity).
Sen. Clinton did not vote.
No surprise on the first two. But
But I’m not sure how sharp this arrow is. Obviously, the liberal wing of the Democrat party will have some problems with her non-position position. But I don't see how this costs her anything in the primaries, or in the long run. But let’s see how she votes on the full bill, or if she does.
Labels: FISA, Law, National Security Agency, NSA surveillance, Politics
The Republican National Committee has a new ad warning that Harry Reid, Hillary Clinton, and Barack Obama are playing into terrorists' hands by trying to block permanent changes to surveillance law. Not that Republicans haven't been playing tough over this issue. They’ve also tried to assert that if the Protect America Act is allowed to expire, all intelligence-gathering will come to a halt. That's not true, although it could be harder to monitor new targets.
But what's noteworthy about this RNC ad is that we've seen it before, in the Johnson-Goldwater campaign from 1964. The famous (or infamous, if you supported Goldwater) “Daisy” spot was only aired once, but may have so successfully stoked Americans’ fears about nuclear annihilation that it helped LBJ win the election. The RNC ad all but says Americans will be killed by Al Qaeda if Clinton or Obama win the presidency. Expect to see the full-fledged Daisy version as we get closer to November.
Putting that aside for the moment, what's perhaps most politically notable about the GOP-Dem fight over the Protect America Act is that the Democrats have been unable to capitalize on their position for their own gain. They don’t really want to bankrupt telecommunications companies who helped the NSA monitor phone calls and e-mails after 9/11, even though they did so without traditional warrants. And neither Democrats nor Republicans believe that the law shouldn't be changed to make it easier for intelligence agencies to do their job. The politics of this debate have become so basic that there's little room left for serious debate or discussion of broader implications from a change to law, and whether those should be taken into consideration.
I think that if you assess this fight purely on the politics, Democrats are once again coming out on the losing end. They seem either unwilling or unable to assert an alternative to the kind of line the RNC is putting out in its video, which may have some fair points but obviously is not designed to encourage an intellectual discussion. This is all very strange, because Democrats have proposed dramatic changes to surveillance law that their traditional allies in the civil liberties community find repugnant. It's not as if Dems are truly obstructionist on this stuff. But they are letting themselves be painted as such.
Labels: FISA, Homeland Security, NSA surveillance, Politics, Terrorism
Several noted computer security experts have an interesting paper in the current issue of IEEE Security & Privacy Magazine. Rather than critique the civil liberties implications of the Protect America Act, the "fix" to intelligence wiretapping and surveillance law being debated in Congress, the experts examine potential security weaknesses in the surveillance system run by the National Security Agency, the system that the act affects.
The authors’ essential concerns stem from the design of the surveillance system itself, which they regard as inherently—and perhaps unavoidably—prone to abuse, both from outside forces and, more likely, government insiders.
First, they argue that the “surveillance architecture implied by the Protect America Act will, by its very nature, capture some purely domestic communications...” This seems plausible, considering the design of modern telecom networks, which the authors do a good job of summarizing in easy-to-understand terms. They spend a fair amount of the paper describing how the NSA’s system would inevitably capture purely domestic communications without a warrant—which would be illegal, even if unintentional—and also how hackers could theoretically penetrate the system and steal communications and other intelligence. The authors acknowledge that the design of the NSA's surveillance apparatus is still secret, but they base their assessments of how it works on press accounts, changes in surveillance law, and on accounts by a former AT&T employee, Mark Klein, about an alleged NSA listening post in
Another fascinating aspect of the surveillance system involves the use of call detail records, which I've written about in some detail. Specifically, the authors are concerned that CDRs, which the government probably can obtain without a warrant, can reveal an enormous amount of personal information about an individual, even though the records only contain so-called “meta data,” such as when a call was placed, what number was called, how long the call lasted, and so on. Could CDRs be a productive form of warantless surveillance?
The authors also point out that CDR information can be inaccurate. The NSA uses meta data to decide which conversations and e-mails to listen to or read. So, if the targeting data is bad, how can the NSA be sure it’s intercepting the appropriate communications? To remedy any potential abuse, intentional or otherwise, the authors recommend “frequent ex post facto review of CDR-based real-time targeting.”
There are some indications in the Protect America Act that this review would occur. The government would be required, for instance, to demonstrate to a secret intelligence court that the means by which it determines the location of certain targets is “reasonable.” (The location of a target is a key factor in whether the NSA can intercept without warrants.) But it remains to be seen how this ex post facto review would work in practice, and whether it would involve CDRs.
A number of the authors have quite a history opposing various enhancements to government surveillance of telecom networks, but their report is by no means an outright condemnation of the pending law or NSA’s activities. It’s worth a read just for the technical explanations of how very difficult it is to intercept communications on the net. But they also offer some constructive suggestions and cautionary tales for a surveillance system that we’ll all be living with for the foreseeable future.
Labels: FISA, Law, National Security Agency, NSA surveillance
The Protect America Act, a six-month modification to the Foreign Intelligence Surveillance Act that directly affects the National Security Agency's terrorist surveillance program, expires on Feb. 1. It's looking more and more like the Congress will punt on this one, passing another temporary extension--perhaps as short as one month--while lawmakers try and sort out a compromise on the law's most intractable issue: immunity for telecom companies that assisted the government in the NSA program after the 9/11 attacks.
The fact that there has yet been no bargain on this point is an excellent measure of just how politically poisonous the debate over intelligence gathering has become. When Protect America was enacted last summer, no one thought a permanent law would be stymied by the immunity debate. As I wrote last month, immunity is actually a Trojan Horse for the administration's critics to pry loose more information about classified intelligence activities.
Very few lawmakers honestly believe that the telecom companies acted in bad faith when they helped the government monitor phone calls and e-mails, and very few want to expose those companies to potentially devastating lawsuits. There is also very little practical difference in the kind of permanent eavesdropping laws that Republicans and Democrats want to enact. (See Ben Wittes' excellent analysis on this fromThe New Republic.)
Given their positions, there's no logical reason, or even a very principled one, why congressional Democrats and Republicans and the White House can't hammer out a deal here. The FISA debate has now become utterly political. And despite how one feels about the merits of this law or its proposed changes, history shows us that the mix of politics and intelligence is a dangerous one.
Labels: FISA, Law, National Security Agency, NSA surveillance, Politics