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
"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director of the Canadian Security Intelligence Service—basically, their CIA—says that the nation's wiretapping law is outdated, and that it's inhibiting Canadian intelligence’s ability to monitor suspects abroad.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
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
No big surprise here, but an important admission from Mike McConnell, the Director of National Intelligence. In a letter to Arlen Specter (Penn.), the top Republican on the Senate Judiciary Committee, McConnell acknowledges that the president authorized the National Security Agency to undertake "various intelligence activities," after the 9/11, aimed at preventing another terrorist attack. I and others have reported on some of these activities over the past year-and-a-half, but McConnell's letter marks the first time any administration official has so publicly acknowledged that the NSA is doing more than just "wire tapping," or intercepting phone calls.
Presumably, McConnell's letter is meant to provide legal cover for Attorney General Alberto Gonzales, whose testimony about his 2004 nighttime visit to John Ashcroft's hospital room left Specter and his colleagues wondering if Gonzales had told them the whole truth about internal disagreements over the NSA "program" at the Justice Department. Gonzales tried to tell Senators that there was no disagreement over the program that the president acknowledged back in December 2005, which McConnell now says was just the wiretapping component, or, in his words, "the targeting for interception without a court order of international communications of Al Qaeda and affiliated terrorist organizations coming into our going out of the United States."
McConnell is asking members of Congress to change the law that governs such interceptions--the Foreign Intelligence Surveillance Act-- and apparently there's significant disagreement over whether it can be applied to totally "foreign" communications that still pass through cables in the United States.
McConnell's letter to Specter can be viewed in light of his very public lobbying efforts, and not solely as a blocking maneuver for Gonzales. Putting it out there that the NSA is, in fact, undertaking other intelligence activities under presidential order strengthens his argument that the intelligence laws need significant overhaul, not just minor tweaking. Remember, McConnell is a former NSA director, and has strong opinions on adapting intelligence laws to the hunt for terrorists. McConnell also led Booz Allen Hamilton's intelligence division--after leaving NSA--and was involved in the Defense Department's Total Information Awareness program, another effort to track terrorist movements and anticipate their plots.
Bottom line: McConnell has been trying to "modernize," if you like, the intelligence community for the past several years. He has been more public about these efforts than many senior intelligence officials, and will continue to be so. He's not the spokesman for this effort just because he's the DNI--this is a personal mission for McConnell, as well.
UPDATE: According to the AP, Democratic leaders are signaling that a deal on FISA might be imminent.
Labels: Director of National Intelligence, Justice Department, Law, National Security Agency, NSA surveillance, Politics, Terrorism
I stumbled onto the terrorism enhancement story several months ago while reporting on another one: the National Security Agency's terrorist surveillance program. I learned about a trial of so-called "eco-terrorists" in Eugene, Oregon, part of the FBI's Operation Backfire against the Animal Liberation Front and the Earth Liberation Front. After lawyers for the defendants for Daniel McGowan, whom I write about in the lead of my story, and his fellow defendants learned that the NSA was monitoring terrorist communications inside the United States without warrants, their lawyers wanted to know if the government had intercepted any of their clients' information. Theoretically, if the government had used warranties wiretaps to secure their indictments--"fruit of the poisonous tree"--it could jeopardize the case. Prosecutors insisted they hadn't used warrantless surveillance information, and for a time it seemed that the government would have to prove that to the judge. Fast-forwarding a bit, the matter ultimately became moot when defendants struck a plea bargain.
It seemed like the NSA angle wouldn't pan out. But something else intrigued me. I learned that the prosecutors were pursuing a "terrorism enhancement" to the defendants' sentences. I've been covering counterterrorism for six years, but I had never heard of this law, which is contained in the same part of the the U.S. Sentencing Guidelines that covers hate crimes and other "victim-related adjustments."
Why was the government pursuing a terrorism enhancement against environmental activists? And who else had they sought it against? That question led me into a months-long investigation that culminated in my current feature story.
Just figuring out how many times the government had sought the enhancement proved impossible--the U.S. Attorneys Office doesn't track that figure. But I was able to determine that judges have applied the enhancement at least 57 times in the past eight years. I studied more than half those cases--35--and learned that prosecutors sought the enhancement more often against domestic defendants, as opposed to members of international terrorist groups.
Labels: Homeland Security, Law, Terrorism