Just a quick heads up to those who might not be on my e-mail list, a pointer to a cover story in Friday's National Journal on China's cyber militia. U.S. intelligence officials and computer security experts believe that Chinese hackers may be responsible for two major blackouts, as well as the theft of information from Commerce Secretary Carlos Gutierrez. The Associated Press picked up on the Gutierrez incident today, as well.
Labels: CIA, Cyber Cold War, Director of National Intelligence, Homeland Security, National Security Agency
In light of recent reporting, I want to recall two previous stories on the revival of the Total Information Awareness Program and its connection to the NSA's surveillance efforts.
You can view all my NSA reporting here.
Labels: National Security Agency, NSA surveillance, Total Information Awareness
"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director of the Canadian Security Intelligence Service—basically, their CIA—says that the nation's wiretapping law is outdated, and that it's inhibiting Canadian intelligence’s ability to monitor suspects abroad.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
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
President Bush has signed a directive that formally kicks off what intelligence reporters have been chronicling for months: The National Security Agency, the nation's electronic eavesdropping agency, will take a new, presumably aggressive role in responding to Internet-based attacks against government agencies.
The Washington Post broke news of Bush's directive on Friday, and the Baltimore Sun had been following this in considerable detail for months. Of particular interest is the distinctly military character of this new plan, known simply as the "cyber initiative" inside government. According to the Post, once the NSA determines that a hostile nation or Internet threat is targeting a government system, the Pentagon can strike back.
The Pentagon can plan attacks on adversaries' networks if, for example, the NSA determines that a particular server in a foreign country needs to be taken down to disrupt an attack on an information system critical to the U.S. government. That could include responding to an attack against a private-sector network, such as the telecom industry's, sources said.
Don't miss the importance of that last sentence. Our government's critical and sensitive information systems run on or are dependent upon privately-owned networks. An attack on AT&T, under this new initiative, can constitute an attack on the nation. The military's cyber attack capabilities are something of an open secret. Commanders love not to talk about them in on-the-record interviews.
This new initiative is meant to send a signal to our chief Cyber Cold War adversary, China: "We are going on the offensive." This campaign will, in some ways, be more significant than the war on terrorism. It will cost billions of dollars, implicate just as many of our most important policies--from privacy to secrecy to the authorities of the intelligence agencies--and ultimately could be a prelude to more overt, off-line conflicts. Settle in. This will be a long ride.
Labels: Cyber Cold War, Director of National Intelligence, 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
Just when you thought it was safe to go on vacation...
Congress and the administration have been busy bees the past week, haggling over modifications to the Foreign Intelligence Surveillance Act. The new law effectively legalizes much of what the National Security Agency has been doing since 9/11 under the so-called Terrorist Surveillance Program. Intelligence agencies now can intercept communications from individuals outside the United States--including American citizens--without warrants. The significant element here is that now, the NSA and others don't have to stop surveillance and obtain a warrant when the target who is outisde the United States communicates with someone inside the United States. That's the big change. And while it's important to emphasize that the government cannot target someone inside the country without a warrant--the target has to be overseas--the new law significantly broadens intelligence-gathering powers in a number of important ways.
Perhaps the most significant, and so far least-reported aspect, is that the new law doesn't narrow these powers to collecting intelligence about terrorism. In fact, the words "terrorist" and "terrorism" never appear in the law at all. The operative term here is "foreign intelligence." This new law should be read not just in the context of counterterrorism, but as a broader modification of the government's eavesdropping and surveillance powers.
The story is still developing, and we'll likely have to wait a while to understand the new law's effects fully. But here are some quick pointers.
First, NPR's Talk of the Nation addressed the issue yesterday in a half-hour segment. I joined a panel of guests including Sen. Bob Casey (D-Penn.), who voted for the new surveillance law, and Rep. Anna Eshoo (D-Calif.), who voted against it. Diane Rehm is also devoting her show this morning to the topic.
James Risen also had a piece in yesterday's New York Times that looks at how the law broadens the intelligence agencies' powers. This really got under the White House's skin--recall that Risen was one of two reporters who revealed the NSA's warrantless surveillance in December 2005--and yesterday the press office issued a rebuttal. Note that the White House doesn't say Risen's story is wrong, and that he does point out that the new law doesn't allow warrantless surveillance of a target inside the United States.
One larger story here is how and why the Democrats acceded to much of what the administration was asking for with regards to "updating" FISA. Part of the explanation is pure math--Nancy Pelosi knew that the Dems didn't have to votes to defeat the bill. But there is much to learn here about how the Democrats view themselves as a majority party on national security issues.
It's also important to note that many credible experts are arguing this new law does not significantly enhance the government's surveillance powers. We will hear a lot of debate on that point in the coming weeks, and it will frame the discussion when this new law comes up for reauthorization in six months.
Labels: Director of National Intelligence, Media Notes and Appearances, National Security Agency, NSA surveillance, Terrorism
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
With all the recent attention on the National Security Agency's surveillance program--particularly that it was the so-called "data mining" aspects that drew Alberto Gonzales and Andrew Card to John Ashcroft's hospital room back in 2004--I thought it was a good time to recall a story I wrote last summer.
This story goes into considerable detail about the NSA program, as well as DARPA's Total Information Awareness. It gives a lot of the shared history of these two programs, and it offers the views of some key senior intelligence officials.
Labels: Director of National Intelligence, National Security Agency, NSA surveillance, Total Information Awareness
Members of the House Intelligence Committee have been engaged in a boisterous debate the past few days over how to change the law that governs electronic surveillance. Republicans are calling for an overhaul backed by the Director of National Intelligence, and Democrats are pushing back, saying that the administration's proposed changes would eliminate many of the current checks-and-balances on the intelligence agencies.
In the latest round, ranking member Pete Hoekstra (R-Mich.) took issue with Democrats' position that the inelligence law does not need to be amended to allow monitoring of foreign persons who are not in the United States. At first glance, the Foreign Intelligence Surveillance Act would seem only to govern surveillance conducted on U.S. persons inside the United States. (That's the Democrats' contention, too.)
But the Republicans have a different view, which--if you closely read a letter Hoekstra sent yesterday to committee chairman Silvestre Reyes (D-Tx)--sheds more light on the particulars about how the government is conducting electronic surveillance.
"You claim that FISA does not require a court order for communications between foreign targets outside the United States. This does not fully or accurately state the law with respect to FISA, and your position would place intelligence community personnel at potential risk of criminal liability if they were to operate outside of FISA without clear legal authority."
If they were to operate outside FISA without clear legal authority. How would intelligence community personnel operate outside FISA? Hoekstra explains:
"Not all of our intelligence is collected under the specific provision of law you mention, and in any event our personnel need clear and binding legal authority in order to obtain cooperation and to have full assurance that their activities are lawful."
FISA isn't the only provision that allows electronic surveillance. The president's authorization of the National Security Agency's warrantless surveillance program also allows it. In addition, Executive Order 12333 gives the intelligence agencies authorities to collect information inside the United States under specific circumstances. But key in on the last bit of Hoekstra's comments: "in order to obtain cooperation and to have full assurance that their activities are lawful."
Does Hoekstra mean cooperation from telecommunications companies? Quite possibly. Why is that important?
"Wiretapping" is no longer a matter of climbing up a telephone pole and putting a bug on the line. The government cannot intercept communications without access to telecom networks--i.e. "cooperation."
The majority of the world's telecom infrastructure is in the United States. We are a hub of global communications. Theoretically, a terrorist in Pakistan e-mailing another terrorist in Algeria could have his message routed through New Jersey. The Republicans seem to be arguing that, under FISA, intercepting that communication inside the United States violates the law, even though the parties to said e-mail reside in foreign countries. The question is, does it violate FISA to grab a "foreign" communication as it passes through our "domestic" infrastructure?
The telecom companies have asked for a a kind of legal immunity for cooperating with government surveillance. Congress has been debating that provision. Hokestra's comments seem to reflect the companies' anxiety that they might technically be violating FISA if they allow the government to intercept communications by foreign parties on equipment based in the United States.
We've seen threads of this theory before, and the debate is no secret. But the war of words between Democrats and Republicans over how to change FISA has been particularly hot this week. This latest salvo by Hokestra is a strong indication that this question over whether, or how, to allow surveillance of foreign persons "inside" the United States is a major sticking point in the FISA reform debate.
Labels: National Security Agency, NSA surveillance, Politics, Terrorism
That's what Senators want to know. Gonzales is testifying right now before the Judiciary Committee--not exactly his favorite audience--about a host of issues. But earlier, Senators grilled him over the famous nighttime visit Gonzales and then White House Chief of Staff Andy Card paid to John Ashcroft, back in March 2004, when the attorney general was gravely ill and sedated at George Washington University Hospital.
Ashcroft's attorney general designate, Jim Comey, provided riveting blow-by-blow details of the event during his own testimony a few months ago, and told senators that he thought Gonzales and Card were trying to take advantage of Ashcroft's weakened state in order to get him to sign-off on a reauthorization of the National Security Agency's warrantless surveillance program.
No, no, no...big misunderstanding, Gonzales said this morning. "We went there because we thought it was important for [Ashcroft] to know where the congressional leadership was on this," Gonzales told Senators. He said that lawmakers from both parties had urged him and Card to ensure that the NSA program--which Gonzales didn't actually identify in his testimony--was re-approved before a pending expiration deadline. (As an aside, you could count on two hands the number of lawmakers who actually knew the program existed.) The way Gonzales tells it, he and Card were just there to bring Ashcroft up to speed on Congress' thinking.
The senators are finding this hard to believe, given Comey's account. He said that not only did the White House call over to Aschroft's hospital room and inform his wife that Card and Gonzales were on the way--and Comey seems to recall that that call may have come from President Bush himself--but that when the two men showed up, they were carrying an envelope, in which we are to presume was a document requiring Ashcroft's signature.
What's more, Comey testified that Ashcroft raised himself up from his hospital bed and read Gonzales and Card the riot act, ticking off all the reasons why he wasn't willing to reauthorize the warrantless surveillance. This was no friendly exchange. Comey said, "[Ashcroft] lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me..."And then, in a line that would make a Hollywood action writer blush, Ashcroft declared, "But that doesn't matter, because I'm not the attorney general. There is the attorney general." He pointed to Comey. This is edge-of-your seat material.
What happened next? Comey said, "The two men [Gonzales and Card] did not acknowledge me. They turned and walked from the room."
Now, today, Gonzales insisted that he and Card hadn't come to pressure Ashcroft into signing anything. "Clearly if he had been competent and understood the facts and had been inclined to do so, yes we would have asked him," Gonzales added. "Andy Card and I didn't press him. We said 'Thank you' and we left."
Gonzales clarified this way: "We would not have sought nor did we intend to seek to get any approval from General Ashcroft if in fact he was not fully competent to make that decision." Key phrase: "if in fact he was not fully competent." Gonzales isn't denying that he and Card went to the hospital to get Ashcroft's approval. He's just saying that they didn't intend to seek it if he was not fully competent. At the very least, it seems that Gonzales and Card went to Ashcroft's bed side to see how sick he really was. There's no doubt about what they wanted, and according to Comey, they got it--the White House later reauthorized the program without the attorney general's signature. It took the threat of resignation--by Comey, Ashcroft, and FBI Director Robert Mueller--to compel President Bush to order his staff to bring the NSA program in line with Comey's and Ashcroft's concerns.
Labels: Justice Department, National Security Agency, NSA surveillance, Politics, Terrorism