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Sunday, July 08, 2007

Congress And FISA

Carl of No Oil For Pacifists wrote an excellent summary, including necessary background, of the NSA case just decided (Anna Diggs Taylor gets her comeuppance). I urge everyone to read it.

There is another unrelated court decision from the Ninth Circuit which also is relevant. SF Chronicle:
Federal agents do not need a search warrant to monitor a suspect's computer use and determine the e-mail addresses and Web pages the suspect is contacting, a federal appeals court ruled Friday.

In a drug case from San Diego County, the Ninth U.S. Circuit Court of Appeals in San Francisco likened computer surveillance to the "pen register" devices that officers use to pinpoint the phone numbers a suspect dials, without listening to the phone calls themselves.

The U.S. Supreme Court upheld the use of pen registers in 1979, saying callers have no right to conceal from the government the numbers they communicate electronically to the phone companies that carry their calls.

Federal law requires court approval for a pen register. But because it is not considered a search, authorities do not need a search warrant, which would require them to show that the surveillance is likely to produce evidence of a crime.

They also do not need a wiretap order, which would require them to show that less intrusive methods of surveillance have failed or would be futile.

In Friday's ruling, the court said computer users should know that they lose privacy protections with e-mail and Web site addresses when they are communicated to the company whose equipment carries the messages.

Likewise, the court said, although the government learns what computer sites someone visited, "it does not find out the contents of the messages or the particular pages on the Web sites the person viewed."

The search is no more intrusive than officers' examination of a list of phone numbers or the outside of a mailed package, neither of which requires a warrant, Judge Raymond Fisher said in the 3-0 ruling.
The situation we are facing is not an easy one. On the one hand, Americans have just suspicion (deeply in tune with the Constitution) that government can run wild with surveillance. On the other hand, the media and the left are misrepresenting the truth of what is actually occurring. Nor can we afford NOT to employ some broadcast surveillance, because the threat of terrorism is very real (and all of that threat does not stem from Islamic fanatics, either - think Korea and the Kim cult).

This is one of the cases in which the public needs to make some decisions on their own. Congress and the President share some powers in the matter of exercising military oversight, and it is Congress which must limit or institute oversight of the constitutional presidential mandate to direct the military and espionage. Congress has refused to deal with the necessities of the current situation, and in doing so, it has thrown a nasty curve ball to the courts. The current FISA statute was really constructed to deal with telephone systems rather than the internet, and land and sea line telephone systems instead of satellite communications. Not only that, but after the pasasage of FISA, Congress funded the systems that allow NSA to intercept and filter modern communications, thus obviously endorsing that effort (especially under the Clinton administration). What made sense for point-to-point communications in 1978 makes no sense for pooled communications, and that is why all of this keeps bouncing around in the court system without much satisfaction for either side.

There are several unreasonable positions emerging:
1) Libertarianish rightists who want no surveillance, but recognize the very real danger of Islamic terrorism. Their solution? Throw out or kill all the Muslims. Needless to say this is as unconstitutional as we can get, and it terrifies me. See the comments to Shrinkwrapped's post, and I think most rational people will agree that this is no solution. It's pretty bad when a courteous, reasonable, humanistic person like Shrinkwrapped keeps getting this sort of response every time he writes about the genuine threat of Islamic fanaticism.
2) Leftish moonbats who believe that Bush and Cheney are the font of all terrorism, and want no surveillance. Their solution? Either ignore the security problem altogether, or deal with it by throwing out Bush and Cheney. See these DU comments on the news of the decision in the NSA ACLU challenge.
3) The average citizen who ignores the issue altogether. I would bet most of us would like allowable parameters for warrantless surveillance laid out. The only way we can get what we want is to get involved and figure out what is acceptable. That's why I suggest that everyone sit down and think about the issue.

The Doctor's Plot makes it clear that the threat of spontaneous organized domestic violence is real. It also strongly suggests that the ability to communicate is necessary to organize a group large enough to commit serious violence. The internet is a great way to organize such plots. Nor is the distinction between foreign/domestic communications meaningful in context of the internet. For example, there is nothing to stop an Al-Qaeda group in Pakistan from setting up a website on a server located in the US.

Should it be legal for the US government to monitor an Islamist site discussing terrorism that is located in the Cayman Islands, but illegal to monitor the same site that is located in LA? My answer is no; monitor both sites. If any action is taken from information gained by monitoring and it is targeted toward a domestic user, I am generally okay with requiring a warrant for domestic phone tapping of a suspect, providing the definition of "probable cause" isn't set too high. But I want the government to find such suspects. (There is no question that it is legal for the government to monitor a foreign suspect's phone calls.)

Suppose the US government monitors such a website and discovers that a particular foreign person is responding to requests for contact and aid from wannabe splodey dopes. The current law is that the government needs no warrant to tap a foreign phone account if it does so overseas, even if it turns out that the foreigner is calling and receiving calls from within the US. I have no problem with that. Do you?

The ACLU appears to have a major problem with it, which I think would make the average citizen wonder just who composes the ACLU and what in the heck they are doing calling terrorists. I know darned well that none of my communications are going to be chilled by an NSA monitoring program, and I shrewdly suspect that the same is true for the entire population of my home county, Pakistani immigrants included. I understand perfectly why Greenpeace was a party to the original lawsuit, because some of those whackos do indeed believe in explosive tactics, and I think there probably is a chilling effect on their global communications. I doubt, however, that the average American citizen considers that a bad thing. Remember, the tapping of international communications if those communications had a domestic side was the point at issue in the NSA challenge. This is how the most esteemed Anna Diggs Taylor phrases it:
This is a challenge to the legality of a secret program (hereinafter “TSP”) undisputedly inaugurated by the National Security Agency (hereinafter “NSA”) at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country.
That's the issue. Not listening in on a call that one Greenpeace organizer makes from one point within the US to another point within the US, but rather the possibility that a call that comes from a foreign phone to a US Greenpeace organizer is monitored. N

ow let's come down to the issue of probable cause for a case in which the FBI wants to monitor the phone calls of a US resident who has been contributing to such a terrorism-linked site. What is the adequate definition of probable cause? If it is set too low, anyone who happened to wander into such a site could be wiretapped. If it is set too high, a person who has spent the last two years praising bomb plots and splodey dopes and asking wistfully for advice about effective bomb-making on this website might not be monitored. Clearly there is some middle ground, but that is why it is important to read the original opinion of The Supreme Tigress in Defense of the Constitution, Anna Diggs Taylor. It is not always the case that any given judge's definition of "reasonable" would accord with the average person's or indeed the average judge's definition. Remember, our Anna of Apoplectic Arrogance managed to get from tapping of international telephone and internet communications to proceed as follows:
Many of their communications are and have been with persons in the Middle East. Each Plaintiff has alleged a “well founded belief” that he, she, or it, has been subjected to Defendants’ interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.
I wonder why? Oddly enough, I don't know any people who have experienced their foreign contacts hanging up on them because they fear NSA. But maybe it is different for Greenpeace, the ACLU, CAIR, etc. Just to make sure we are all on the same page, the desire of the plaintiffs in this case is that if NSA is monitoring a foreign number or email address because they have flagged it as possibly in use by terrorists, the NSA should cease to monitor the number or email address pronto if a call or message is originated to or from the United States. I am pretty doubtful that the average American citizen would consider this a reasonable procedure. The average American citizen doesn't care all that much about preventing terrorism in other countries, but cares a lot that their local courthouse or airport doesn't detonate unexpectedly. So maybe you are not seeing the injury, but that's because you have not read the original decision by our esteemed Taylor. By page 18 we are getting down to the meat of it:
Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.12 In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations,13 and must discuss confidential information over the phone and email with their international clients.14 All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.15 They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases.16

The ability to communicate confidentially is an indispensable part of the attorney-client relationship.
So there's the injury. It is making it more expensive to defend accused terrorists. Again, I am pretty sure I could ask every person in my home county about this pressing and most serious problem without finding one person who believes that it is more important to ensure that the lawyer defending the person who is accused of plotting to blow up the local courthouse incurs no additional travel expenses than to prevent the courthouse from being blown up. In all honesty, I think I would get a 100% agreement on the reversal of these priorities.

After citing case law on page 19 that utterly blows away the "chill" argument, our Amicable Anna purports to explain it away on the basis of this terrifying and incredibly concrete injury, and is still darkly brooding about this same injury on page 21:
Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations.
We are still, btw, discussing the subject of standing. By page 24 we have the admission that there have been no requests for search warrants, no prosecutions and no investigations, but this, it is darkly alleged, is precisely the problem that causes the injury. At this point the average citizen of my home county (which, for reasons of confidentiality, we shall refer to as Patriotic Podunk) would be thinking hey, if the government isn't chasing you why the heck are you complaining? It goes on, but this gets too long.

I want to encourage everyone on both sides of the issue to step back and think for themselves. There is no question that American citizens want the powers of the US government to be constrained. Allowing extremists of any ilk to dominate the decision-making process will not get us where we want to go, however.

The question of whether FISA can prevent the President from listening to a conversation originating from the continental United States while monitoring a foreign source with domestic resources is still open. The claims that it does are not going to succeed in the abstract, because by that contention it would have been illegal for the United States government to have listened in on a call to Saddam Hussein's private line during 2003 (war) if such a call had stemmed from Patriotic Podunk County, Georgia, unless, that is, a warrant was obtained through the FISA court. Indeed, if one accepts Taylor's opinion at face value (which ends in bare assertions untrammelled by case law), that would be the effect and meaning of FISA.

But such an effect and scope is clearly a violation of the Constitution assignment of powers to the Executive as explicated by the US Supreme Court. Under our Constitution, even Congress doesn't get to modify Presidential powers as enumerated in the Constitution unless it does so by amending the Constitution. Therefore that cannot be the effect of FISA. It must somehow be more limited.

There are obviously lesser circumstances in which Congress does have the power to modify the acceptable range of the Executive under the US Constitution by explication through legislation - but Congress has refused to address what would be doable and realistic given modern communication systems. Its failure to update FISA is what is making us insecure. This is a situation which Congress should address, but I note with great interest that the Democratically controlled Congress somehow has wandered away from this pressing issue in a fit of abstraction. Clearly they do not want to take the heat on this issue, and it is just as clear that if this is an injury to the body politic, Congress has the constitutional right and duty to act by legislation.

I believe that spinsters and extremists like this particular situation. I do not believe that the average American finds it comfortable. It is time for us all to sit down and figure out what we believe and then discuss the current situation with our Congressional Critters. If this is done as the Constitution is set up to allow, then when circumstances change the law can change. If we leave it in the hands of the federal courts, not only the courts but the citizens are unlikely to like the results. Most justices are considerably more trammelled by the law than Anna Diggs Taylor, and so they are aware of the possible scope of their rulings. They will thus try to create a workable set of guidelines for what FISA can constitutionally mean and do. Those guidelines may not be what the average American wants FISA to mean and do.

Congress wrote FISA. Congress can update it. Congress should update it. Congress won't unless the American people fry Congress on an electoral griddle. Congress is wimpy in the extreme, and wants to spin problems rather than solving them.

Very thoughtful post, M.O.M.

There is no perfect solution this side of heaven. That said...

Two things making this even more complicated--however it ultimately gets decided--are the easy availability of strong encryption (tending to limit the economic accessibility, e.g., by the NSA to communications to those things that are really really important) and the increasing route uncertainty of any electronic communication (i.e., even ordinary phone calls may traverse the Internet, bouncing across several national borders; all Blackberry traffic, for example, crosses--or at least used to cross--into Canada and back, making it fair game).

I particularly like your bit about Greenpeace, as it neatly shows up the potential for natural philosophical sympathies between the left and Islamofascism and any other group that would use random violence to drive a wedge in the unreasonable search debate right quick. Attorney client privilege (especially when the suspects are foreign nationals not ordinarily subject to the protection of our laws!) seems like a very narrow peg on which to hang wider policy.

Given all of this, we may be entering a world in which we have to rely on the same transparency and fluidity of communications that exposes us all to the potential for government abuse to also help check that abuse as it arises. Few on the left bother to note--in painting their shrill and dire scenarios--that their ability to provide such warnings gives the lie to a repressive future. I.e., if you can rant on and on about a repressive Bush regime, it doesn't really exist!
"if you can rant on and on about a repressive Bush regime, it doesn't really exist!"

KM, it doesn't, but I try always to be aware that presidents are different, and that such things have been misused before.

I believe pattern matching and data mining are a necessity to counter this threat. It will burn itself out eventually, but it will take a long, long time to do so. Until then, we will be forced to use what tools we have to mitigate the danger. I don't believe that the average American would be upset at these techniques. For our society's sake, the average American should sit down and think about it.

Authority apportioned by a court is not as reinable as authority by legislation. Congress is the body that is creating this problem, and they have had years to think about it. They avoid their constitutional responsibilities (both parties!) because they are irresponsible cowards. We all need to see this clearly and hold them to account.
MOMA, re this: Libertarianish rightists who want no surveillance, but recognize the very real danger of Islamic terrorism. Their solution? Throw out or kill all the Muslims. Needless to say this is as unconstitutional as we can get, and it terrifies me.

I fall into this camp, so I guess I am a Libertarian Rightist (who knew? I consider myself a traditionalist). However, the options you present do not present what I see as the most likely scenario. Instead of "throw(ing) out or kill(ing) all the Muslims", a reasonable start would be to:

1. stop allowing the continuing entry of large numbers of Muslims from the Middle East (usually here to "study"), many of whom do not return home and exacerbate our security problems here. This is not a constitutional infringement - AFAIK, aliens have no right to study here, tour or immigrate.

2. deport non-citizen Muslims. Controversial? Yes. Contrary to recent tradition? Yes. But their large-scale unrestricted entry over the last decade or so itself was contrary to our previously established traditions. And since they are not citizens, they do not have rights defined by the constitution.

By closing the ongoing rush of new entries and deporting those who have no right to be here, we reduce our risk immensely.

3. close the Mosques and/or Madrasahs that espouse violence, including advocating a different form of government (this is called treason). Surveillance does become important here.
Frank - I am literally talking about those who seem to be advocating total war. I am not referring to people who are trying to figure out how to make this all work. Because reasonable people have been shouted down in the public square, the extremists are becoming the loudest voice.

We probably should limit immigration of people we do not know. Recent history has not been favorable. But not on the basis of religion. If we do that, Frank, we've tossed the First Amendment. One of the reasons the recent immigration bill appalled me is that the H2C provision would have brought in a huge number of people with almost no investigation, and it provided a huge economic incentive to do so.

I have no problem with deporting non-citizens who are advocating murder and so forth. I'm sorry, some people are despicable and no one has the right to say that they must be allowed to come here or stay here or get citizenship. Heck, the government deported some German whose name I forget who was a major Holocaust denier. That's all fine with me.

But I draw the line (as you seem to) with deporting Muslim citizens. They should have the same rights and responsibilities as any other citizen.

The bottom line is that there are millions of Muslims in this country. Most of them are not terrorists. Effective surveillance and reasonable measures to find and prosecute would-be terrorists are not a crime against them, but a security for them.

I'll admit that I found CAIR's sponsorship of the NSA bill very angering. That is why I typed out this whole long post. Under no circumstances do I want to see us become the type of lily-livered placating dweebs that so much of Europe has become. I think CAIR should be asked a few tough questions and screams of offense should be given no credence. But I also want to know what the heck ACLU and Greenpeace are doing.

I'd also like to know why the newspapers don't cover these questions honestly. It is clear to me that Europe has actually bred its own internal violent brand of Islamic revolutionaries by being overly tolerant. I don't want to see that happen here.
The bottom line is that there are millions of Muslims in this country. Most of them are not terrorists.

You may be right that most Muslims are not terrorists, but that doesn't really help - the bottom line is that by calling themselves Muslims, they pledge allegiance to Islam, which is a "religion" that commands them to wage war on infidels, which happens to be the majority of Americans.

As for deportation being unconstitutional, since Islam is not really a religion in a traditional sense, but rather a political ideology of world conquest masquerading as a religion, it shouldn't enjoy First Amendment protection in the first place.
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