UPDATED: Rewriting FISA–Technological Compression and Signals Intelligence
Historian Philip Bobbitt writes in today’s NY Times that 9/11 means the FISA laws must be recast and revised.
For background on this, see my Weekly Standard article from January 2005 and read its discussion of the strategic significance of technological compression. It is boon and bane– “over there” and “back here” have merged.
Since some readers have trouble accessing the Times’ editorial page, I’m going to quote Bobbitt’s lede and a substantial portion of his introductory analysis:
IN the debate over whether the National Security Agency’s eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest.
Owing to the globalization of telecommunications, many telephone calls between parties in foreign countries or with an American at one end are routed through American networks. By analyzing this traffic, the National Security Agency has been gathering clues to possible terrorist activities.
The agency was authorized by the president, we are told, to intercept messages if one of its supervisors believed there was a link to Al Qaeda — rather than requiring the usual statutory showing before a special court of probable involvement in terrorist activity when one party to the exchange is a “U.S. person” (a person in America or at an American corporation abroad). This would appear contrary to the provisions of the surveillance act.
The N.S.A. is our most important intelligence agency. Typically, about 60 percent of the president’s daily brief comes from its intercepts. But the agency was created during the cold war to collect against enemy countries, and that war, indeed that kind of war, has now been superseded. Signals intelligence in the 20th century meant intercepting analog signals along dedicated voice channels, connecting two discrete and known target points. In the 21st century, communications are mostly digital, carry billions of bits of data, are dynamically routed in packets to be reassembled and are globally networked.
All true. Read the entire essay.
UPDATE: Tigerhawk looks at Obbitt’s essay.
Actually, not all of it is true. In order to be a “U.S. Person”, you have to be a citizen or a legal permanent resident of the US. Neither was true of any of the hijackers, therefore it would have been perfectly legal to intercept all of their communications between each other and with those outside of the US under FISA without getting a warrant.
Comment by ditty — 1/30/2006 @ 11:25 am
Historian? Tag line is “‘Philip Bobbitt, aprofessor at the University of Texas Law School and a former National Security Council senior director, is the author of the forthcoming “Wars Against Terror.”‘ As a matter of fact, undisclosed by the NYTimes, but surely relevant, is that he was National Security Counsel senior director in the *Clinton* Administration and, presumably, a registered Democrat.
Comment by Fleecer — 1/30/2006 @ 11:27 am
Mr Bay: The sidebar on your blog take up 1/3 of the screen and hides the last several words of each line. Excellent blog! Larry Scoggins
Comment by larry scoggins — 1/30/2006 @ 11:45 am
Bobbit seems to want to give crits to GW for not “explaining” this better to the American people. Hello, it’s CLASSIFIED. Bobbit and the rest of you armchair pundits can hypothesize all you want, but if GW came out with an explanation, like the one Bobbit postulates here, that would be a violation of his security oath. Hayden and Bush said the SAME THING. We would tell you more if we could. Freedom of the press does not mean freedom to know the details of our covert ops, and publish them, for cripes sake. Does Bobbit seriously think GW should compromise an intel collection channel to make explanation? Sickening.
Comment by speaker-to-animals — 1/30/2006 @ 11:46 am
Bobbit abandons the debate after his opening line. Does FISA need to be revised? Probably. That’s not the issue. The issue is did the President break the law? We have laws for reasons. ‘Special Circumstances’ is NOT a legal defense. If the President is not held accountable by the law, then he is abovce the law, and he becomes a dictator by definition.
Comment by Adam — 1/30/2006 @ 12:35 pm
From the Bobbitt piece: “The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest.” “This would appear contrary to the provisions of the surveillance act.” “This is not to play down the damage done to our war aims by the executive branch’s repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting.” “Seemingly heedless.” “Appear contrary.” “Appearance of indifference to law”. Nice weasel words here. I’m wondering if the NYT is starting to crack, and that they are starting to confront the horrible possibility that the NSA’s activity IS legal, in which case it would “seemingly appear” that someone within or close to their organization has commmitted treason in wartime.
Comment by Mark Phillips — 1/30/2006 @ 12:39 pm
Historically telephone switches mangaed by carriers handles and switched voice calls to and from wherever. With VoIP the switch can be virtual. I can have a VoIP telephone number in Brussels with a 212 area code or I can have a Brusselsthat I answer in the US and vice versa I can have a Brussels phone number that someone calls and I answer in the US.. TheNSA picks up 15 terabytes of info (Phone calls, e-mail, faxes) daily. It looks at all through a filter. What they are looking for is intelligence. This info is sent to other agencies. Google “Echelon, NSA”. Is the person writing the filter code supposed to be a lawyer or an intelligence analyst? This is a war? Who has been harmed with any of this analysis. As someone said they are looking for dots and other agencies are to connect them. I am appaled at the uproar apparent lack o understanding the problem or lack thereof.
Comment by bill welling — 1/30/2006 @ 1:30 pm
I want to see Bill Keller and Pinch frogmarched out of their downtown offices. Their goal is to make it impossible for the U.S. to take the actions needed to defend itself…say, with respect to Iran. Their legions must be discredited — if not jailed. It’s getting harder and harder to pretend that they are not with the enemy.
Comment by pdquig — 1/30/2006 @ 10:28 pm
Adam, #5, sorry, but “exigent circumstances” is always a defense.
Comment by HeyBub — 1/31/2006 @ 6:50 am
Hmmm… 1) It is not for the President to determine whether his actions are legal or not. That is the role of the courts. 2) If they do find his actions, or those of others under his purview illegal, then there are two (non-exclusive) options: a) sanctions (from impeachment on down) b) Congressional amendation of the act/law to grant clemency and (optionally) to make his actions legal. 3) “Exigent circumstances” is an excuse or rationalization, not a reason. 4) I suspect that –apart from the question of “legal authority”– most Americans (and other residents of the US, whatever their status is) have heightened concerns about their privacy these days, a result of the rise in identity theft and also in the level of “free-loating ” paranioa in the general public. There is also a mistrust of this administration, particularly in regard to promises made v. promises kept. The question “How do I know that they will not provide access to my company’s priviledged information to a competitor who happens to be a large donor?” is one that has to be going through a large number of CEO and CSO’s minds. US DA Alberto Gonzales promised yesterday that such a thing would not happen, but we all know that accidents happen (viz. the assorted personal information leakages chronicled in the press), and that people can be corrupted. Another question that comes to mind (for me) is where the line between legitimate dissent and treason is drawn, and how treason is defined. Should information gathered through this program be used in federal hiring? While this might be useful, it is not difficult to imagine an adminstration that would use the information gathered though this mechanism as a form of “loyalty test”. Remember, the actions authorized by this adminstration will be available to subsequent ones, and there is no guarantee that you will always be on the side that is in power.
Comment by CowboyRadio — 1/31/2006 @ 12:34 pm
Yes, the world is a smaller place electronically… second and a half across, give or take. How unfortunate that the Constitution seems to only recognize actual Territorial Boundaries. From my reading of the Constitution this program looks to be covered by the CinC powers of the President if he is not looking to *prosecute* someone. For prosecution we have the Lesser Courts and Tribunals set up by Congress. Beyond that, the only insurance of privacy between a citizen in the US contacting anyone outside the US is either through Treaties or some expansive interpretation of the commerce power by Congress (and I would not put it past someone to argue *that* after the recent medical marijuana decisions). It seems that the powers of the Constitution tends not to cover activities outside the US, including communications with the provisos noted. But then I am just a poor citizen reading the Constitution… unless someone is trying to substitute SPQR for USA…
Comment by ajacksonian — 2/1/2006 @ 3:18 pm
Terrific Blog you have. Peace Out. TreeFrog
Comment by TreeFrog — 2/21/2006 @ 8:45 pm
Computer repairs
Comment by loom — 8/4/2007 @ 5:39 am