Tuesday, March 4, 2008

FISA and the FBI

Here's a comment that I posted elsewhere--

At the breakfast yesterday, [Kenneth] Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Privacy advocates have raised concerns that the Senate bill contains a provision that would allow the attorney general to erect a new barrier to future privacy cases brought under the nation's foreign intelligence surveillance law.

Contrary to current practice, the Senate bill would halt such lawsuits if the attorney general certifies that the assistance provided by the telecom carrier is lawful. The only check on that certification would be a court review as to whether the attorney general "abused" his discretion, which experts said yesterday is the lowest possible standard of judicial review.

"This provision is yet another example of the executive branch 'just trust us' mentality when it comes to intelligence matters," said Kevin Bankston, senior staff attorney at the Electronic Frontier Foundation.

You know, when I see something like this reproduced and commented upon here--as if it were actually true--it makes me realize that we're fighting a losing battle with people who will say anything to stay in power.

Here's Glenn Greenwald, to smack this shit down once again:

The only reason why Congress began considering amendments to FISA in the first place was because a FISA court earlier this year ruled that a warrant was required for foreign-to-foreign calls incidentally routed through the U.S. via fiber optics. Everyone -- from Russ Feingold to the ACLU -- agreed that FISA never intended to require warrants for foreign-to-foreign calls that have nothing to do with U.S. citizens, and thus, none of the bills being considered -- including the bill passed by the House -- requires warrants for such foreign-to-foreign calls. Here is Rep. Rush Holt, a member of the House Intelligence Committee and one of the key architects of the House bill, explaining what the House bill actually does:

Ensure that the government must have an individualized, particularized court-approved warrant based on probable cause in order to read or listen to the communications of an American citizen. . . .
The RESTORE Act now makes clear that it is the courts -- and not an executive branch political appointee -- who decide whether or not the communications of an American can be seized and searched, and that such seizures and searches must be done pursuant to a court order.

Under the House bill, individualized warrants are required if the U.S. Government wants to eavesdrop on the communications of Americans. Warrants are not required -- as [Time Columnist Joe] Klein falsely claimed -- for "every foreign-terrorist target's calls."

While the government (in order to prevent abuse) must demonstrate to the FISA court that it is applying its surveillance standards faithfully, the warrant requirement is confined to the class Rep. Holt described. Klein's shrill condemnation of the House FISA bill rests on a complete falsehood (that's not surprising; the last time Klein wrote about FISA, he said that "no actual eavesdropping on conversations should be permitted without a FISA court ruling" and then proceeded to defend a FISA bill which, unbeknownst to him, allowed exactly that).

So, once again, we have to stomp our feet and patiently explain why you can't believe anything a member of the Bush Administration or the Republican Party has to say--they are lying and they know it. This is the smokescreen that they are trying to use to cover up systematic abuse.

Here is an excerpt from a filing dated MAY 17 2002
from the U.S. Foreign Intelligence Surveillance Court, and it details abuse of intercept BEFORE 9/11:

In November of 2000, the Court held a special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications. After receiving a more detailed explanation from the Department of Justice about what went wrong, but not why, the Court decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false. One FBI agent was barred from appearing before the Court as a FISA affiant. The Court decided to await the results of the investigation by the Justice Department's Office of Professional Responsibility before taking further action.

In March of 2001, the government reported similar misstatements in another series of FISA applications in which there was supposedly a "wall" between separate intelligence and criminal squads in FBI field offices to screen FISA intercepts, when in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations.

To come to grips with this problem, in April of 2001, the FBI promulgated detailed procedures governing the submission of requests to conduct FISA surveillances and searches, and to review draft affidavits in FISA applications, to ensure their accuracy. These procedures are currently in use and require careful review of draft affidavits by the FBI agents in the field offices who are conducting the FISA case investigations, as well as the supervising agents at FBI headquarters who appear before the Court and swear to the affidavits.

In virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors. These incidents have been under investigation by the FBI's and the Justice Department's Offices of Professional Responsibility for more than one year to determine how the violations occurred in the field offices, and how the misinformation found its way into the FISA applications and remained uncorrected for more than one year despite procedures to verify the accuracy of FISA pleadings. As of this date, no report has been published, and how these misrepresentations occurred remains unexplained to the Court.

Instead of correcting the problem, which actually dated back to the Clinton Administration, the problem got worse:

At the end of 2006, the FBI's Telecommunications Intercept and Collection Technology Unit compiled an end-of-the-year report touting its accomplishments to management, a report that was recently unearthed via an open government request from the Electronic Frontier Foundation.

Strikingly, the report said that the FBI's software for recording telephone surveillance of suspected spies and terrorists intercepted 27,728,675 sessions.

Twenty-seven million is a staggering number given that the FBI only got 2,176 FISA court orders in 2006 from a secret spy court using the Foreign Intelligence Surveillance Act.

According to the math that means each court order resulted in 12,742 "sessions," all in regards to phone, not internet, surveillance.

That's a lot of terrorism. You'd think there were bombs going off on Main Street in Podunk, Idaho on a daily basis.

The only explanation is that the FBI is running wild, collection all manner of information on US persons, and handing that information over to the Bush administration. Is the FBI complicit in the wholesale spying of the Bush administration on the Democratic Party? On anyone opposed to the policies of the Bush Administration?

There aren't even 27.7 million illegal aliens in this country. How could there be 27.7 million terrorists?

If they grant immunity to the telecom companies, we will never find out why they had to listen in on 27.7 million conversations in 2006. We will never get to the bottom of this.

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