Question About Current FISA (0.00 / 0)

Does the current FISA law require a warrant when a foreign target is calling someone within the United States who is not a target?  Glenn Greenwald says no  (http://www.salon.com...), but I always thought that FISA required a warrant whenever someone in the U.S. was under surveillance (target or not).  If this is the case, then how should we think about the basket warrant issue? Essentially, the problem with basket warrants is that by "targeting" a foreign person or persons for surveillance in a large batch, they can also suck up large amounts of data from calls to the United States at the same time.  If this is done on a case by case basis,then it is possible to keep a list of U.S. persons who each foreign person calls.  If you increase the numbers of foreign targets exponentially, this becomes impractical and less likely to happen.  Is this the right way to think about this?  Is there a provision in the new FISA proposed by House Dems that mandates the collection of this data that is enforcible? I think there is such a provision, but it seems to me that the reason the administration wants basket warrants is precisely because they can't possibly collect data on individuals in the U.S. who communicate with their foreign targets.  They are scooping up too many.  They only need to identify the U.S. person if they say something of interest.  In other words, basket warrants can be seen as a back door to warrantless data mining of people in the U.S..  So is it just an issue of scale when it comes to surveilling non-target U.S. persons, or is it an issue of requiring a warrant every time a person in the U.S. is surveiled?

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by: supag32 @ Tue Oct 09, 2007 at 17:18:25 PM UTC

What have the Progs said about the new bill? (4.00 / 1)

The GOP will be voting against the bill; presumably some (at least) of the Dogs.

What about the Progs? Evidently, if the ACLU is right, they've got something to hang their hat on - and even a minority of their votes would kill the bill.

But I've seen nothing from the Triad (Lee/Woolsey/Waters) today about CPC intentions.

Keeping their power dry, presumably. We'll know soon enough.

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by: skeptic06 @ Tue Oct 09, 2007 at 17:36:04 PM UTC

nytimes article (0.00 / 0)

http://www.nytimes.c...

In an acknowledgment of concerns over civil liberties, the bill would require a more active role by the special foreign intelligence court that oversees the interception of foreign-based communications by the security agency.
...
"We are giving the N.S.A. what it legitimately needs for national security but with far more limitations and protections than are in the Protect America Act," said Brendan Daly, a spokesman for Speaker Nancy Pelosi, Democrat of California.

We will have to wait to see what the final House bill says. The article goes on to sat that the Senate version may be much different which would leave us to see what the compromise bill ends up as.

I think supag32 in his/her post above brings up some good points regarding the scale of the mining and how it doesn't lend itself to individual warrants.

If a unknown citizen is part of 'cell' within the US is it better to let them go undetected or to try to sniff them out electronically? That is the question the Left has to ask themselves. With 300 million Americans we just do not have the combined manpower to keep tabs on everyone. We can't even keep narcotics or pedophiles off the street.

With Pelosi saying "more limitations" and the article citing more FISA court involvement my guess would be that if an American citizen became someone of 'interest' due to the mining then warrants would have to then be issued. That seems like a fair compromise to me.

Again the Left as a whole and the ACLU must ask themselves if there is any compromise at all they are willing to make in order to save American lives due to another attack which I think everyone agrees will likely be tried again.

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by: talex @ Tue Oct 09, 2007 at 18:21:09 PM UTC

[ Parent ]

Stop being a concern troll (4.00 / 1)

a) What evidence is there that the left and the ACLU are unwilling to compromise? But compromise doesn't mean accepting an appalling bill. Besides, since when was your constitution something worth abandoning in the name of compromise?
b) What evidence is there that these kinds of added powers are needed? There's no evidence that any of the supposed attacks planned on America since 9/11 were very far advanced in the planning and they were stopped without the use of wiretaps.
c) What evidence is there that these powers won't be used to spy on American citizens and others in circumstances that would not be legitimate? I for one am wary of trusting this administration.
d) Did you perchance work for Nancy Johnson's 2006 re-election campaign? Because your argument resembles this ad with the stupider rhetorical devices stripped out.

Whilst terrorists are a threat, there not half as much of a threat to the US as is made out, there is no reason to abandon liberty here as you wouldn't even gain security and terrorists are not waiting under your bed to kill you.

Forgotten Countries - a foreign policy-focused blog

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by: Englishlefty @ Tue Oct 09, 2007 at 20:04:10 PM UTC

[ Parent ]

First Of All (0.00 / 0)

let me say how utterly ridiculous the term 'Concern Troll' is. If you read any blog - front page or comments - all you will read 95% of the time is 'concern posts'. So it is damned silly for anyone to single out any post and say that it is one of concern and by inference the others are not. You are 'concern trolling' me aren't you?

a) Until the ACLU or the Left in mass says they are willing to compromise instead of being 'concerned' about the bill then the only logical conclusion is they are not willing to compromise.

When was the Constitution something worth abandoning in the name of compromise? Well first we aren't abandoning the entire Constitution. We are only amending a part of it for the sake of security and we are not throwing that portion entirely out. We are only tweaking it to accommodate  surveillance that most people in government and the public think is prudent. It's not like there is an actual person listening to your and everyone else's calls you know. There has to be a pretty convincing pattern to single you out for what I think is going to require a warrant.

b) Sorry but that is a pretty uninformed question to ask. I guess you think there should be no domestic security at all against a terror threat?

C) I'll have to see the final bill to see just what increased oversight powers the FISA Court is given before being overly 'concerned'.

d) No I didn't. I was not even aware of her position on the issue. Don't forget when Bush admitted he was breaking the law and said he would continue to the general public was polled and the bast majority were not too 'concerned' because they want to be protected. I'm not condoning Bush's action I am just making the point that those like you are out of step with the majority of your fellow citizens.

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by: talex @ Tue Oct 09, 2007 at 23:58:56 PM UTC

[ Parent ]

Still in disagreement (0.00 / 0)

Apologies if the concern troll label offends you. Let me stress that I don't normally perceive you to be such - I disagree with you on a fair few issues, but your points are well argued. Here I feel (and you are of course welcome to disagree with me) that that is not the case.

Anyway, responses:

a) No, you don't assume compromise is out of the question until somebody says it is. That kind of give and take is part of a parliamentary process and I would certainly hope that negotiations are taking place here to get the progressives on side. After all, their point isn't that the government should never wiretap - it's that there should be limits.

The ACLU is a different matter. They're an advocacy organisation, they're supposed to be a little more rigid on the argument. But with the progressive caucus you can't assume that they're inflexible until proven otherwise.

b) No. I think there should be domestic security. There should even be wiretaps under proper oversight provisions when it proves necessary. That said, it just isn't necessary that often. And attacks are frequently stopped without the use of such tactics. Even 9/11 (which does qualify as an occasion when it was necessary) could probably have been stopped had US airport security been more intensive (which is a whole other issue, but let's not go off on a tangent about the activities of Palestinian terrorists in Europe in the 1970s.)

Certainly, there's a place for all kinds of tactics. But there's also a need for there to be strong rules about these kinds of tactics, to prevent them being abused. That's not being soft on terrorism, that's being tough on liberty.

c) Agreed. I haven't yet read the text. But signs aren't encouraging right now.

d) Firstly, I should probably apologise. That was basically just a cheap shot on my part. However, I would point out that the events of that campaign (Johnson ran the ad, it was criticised for rampantly misrepresenting the issue, she lost in a blow-out) show that the public can be made to care about the issue and are prepared to accept a more nuanced approach.

I'd also point out that the progressive movement sometimes takes stands on issues that aren't that widely held as important amongst the general public. That's OK, majoritarianism is not our primary guide.

Also, just for the record, they aren't my fellow citizens. As the handle suggests, I'm British. I'm sure this skews my perspective relative to yours, but I am of course speaking as an armchair quarterback rather than as an expert on the issue.

Forgotten Countries - a foreign policy-focused blog

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by: Englishlefty @ Wed Oct 10, 2007 at 10:29:40 AM UTC

[ Parent ]

amendments (0.00 / 0)

I read somewhere (HuffPost, Greenwald, etc.) that Progressive Caucus members were planning on substantive amendments to problem areas like the one the ACLU is worried about. 

We should accordingly focus on the Rules Committee to see what amendments they will allow on this bill to see if we should urge passage or defeat. 

Remember, Congress has been tweaking FISA repeatedly after 9/11, not just with the PAA this summer. So blocking this bill will not get us back to the pre-PATRIOT Act days.

Truth over balance, progress over ideology

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by: Oldenburg @ Tue Oct 09, 2007 at 17:51:05 PM UTC

Just called DiFi's office (0.00 / 0)

Just got off the phone with DiFi's DC office (202.224.3841). I last called 'em on Thursday about this subject.

Got phone-answerer (a guy, this time) and asked if the Senator was in favor of granting retroactive immunity to telecoms who violated federal law by spying on Americans without a warrant. Was told, of course, that the Senator simply had not made an announcement on this issue, and that he'd be happy to relay my thoughts to the Senator.

I noted that the House Judiciary Committee, clearly, had, itself, made an announcement on this very issue, by virtue of the fact that it has now drafted a bill that does *not* contain retroactive immunity. Was told that the bill the Senator will vote for will certainly be one that conforms to the House bill.

I expressed my surprise at the above statement, given the fact that the WaPo reports that House Democrats lean against granting retroactive immunity (not to mention the House's recent draft bill which fails to grant retroactive immunity), while Democrats on the Senate Judiciary Committee (of which the Senator is a member) favor granting some sort of retroactive immunity... again, per the WaPo. Was told, by phone answerer, that he had misspoken in his previous answer. That what he meant to say is that there will likely be a conference committee, down the line, marrying these two bills, and that that bill is gonna be the one the Senator ends up supporting.

I said that I understood these bills will be reconciled in conference committee, and that my fear is that, at that point, it will be too late to effectively influence my Senator, particularly if she keeps her position secret until that time. I continued by confessing my fear that that may, in fact, be the Senator's strategy: to keep her position secret as long as possible (in contrast to my representative and my other Senator, who've already declared their stance on this issue), until such time as it's too late for constituents such as myself to respond effectively. Was responded to with silence.

I asked if the Senator, or any of her staffers, could confirm or deny the WaPo report that Democrats in the Senate Judiciary Committee favor some form of retroactive immunity. Was told that no one could confirm or deny that.

I asked for confirmation that the Senator's staffer, Dan Safire (sp?), is the staffer most responsible for coordinating the Senator's action on this specific issue. The phone-answerer confirmed. I noted that that I'd left a message for Mr. Safire (sp?) last week, and had not heard back. I asked to leave another message. Was transferred to said staffer's voice mail.

Left message on voicemail of Dan Safire (sp?), asking him to please explain to me why my Senator was unwilling to do what my Congressperson and my other Senator were already willing to do: declare an opposition to the granting of retroactive immunity to telecoms who violated federal law by eavesdropping without a warrant.

Am now waiting, breath held, for a return call.

Patrick Meighan
Culver City, CA

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by: patsweetpat @ Tue Oct 09, 2007 at 18:49:53 PM UTC

House Judiciary (4.00 / 1)

has markup in the morning.

Mounting an eleventh-hour local effort to get Represntative Tammy Baldwin to take a not very bad bill, and amend it with a step forward on Communications Privacy by including a warrant requirement for location data on cellphones and other wireless devices. (She sits on both Judiciary and Commerce, which also has jurisdiction over Telco issues.)

I don't get why this has to be rushed with limited public input on the details.

My Wisco-centric take is up at folkbum's.



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.

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by: Ben Masel @ Tue Oct 09, 2007 at 22:13:09 PM UTC

[ Parent ]