zack

In General

If I had a television alarm clock, full wall-sized screen, I would set it to this for the foreseeable future. It’s really charming when he knocks.:

I want to see The Dark Knight again. I hope in the inevitabl(e)(y) thrilling climax there is more development towards Batman’s approach as a detective and not just a high-tech ninja billionaire.

Congratulations to everyone for everything. Count me in for another shove of the merry-go-round.

I’m always getting a little more into Rush.

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From www.ketchupandcaviar.com:

What you’ll see below are two diagrams comparing Old and New FISA.

I Used the Following resources for these charts:

* The new FISA compromise: it’s worse than you think (by Timothy B. Lee on ars technica)
* A Guide to the New FISA Bill, Parts I, II, III (by David Kris guest blogging on Balkinization)
* FISA Fix Follow-Ups and The Key Questions About the New FISA Bill (by Marty Lederman on Balkinization)
* H.R. 6304: FISA Amendments Act of 2008
* Interview with the ACLU re: constitutional challenge to new FISA law
* See Additional Resources, below

I wanted to know what combinations of the following factors triggered a FISA Warrant requirement under the old and new laws, and which didn’t:

1. Is the Communications Domestic, Foreign-to-Foreign, or Foreign-to-U.S.?
2. What technology is involved in these communications?
3. Is the target located inside or outside the United States?
4. Is the intelligence collected inside or outside the United States

I’m sure I’ve got some of this wrong (let me know), but I think I’ve go the big picture. (I’m leaving out the soon-to-expire Protect America Act, which this bill modifies).

The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the following chart:

What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted.

On the face of it, this new loophole might not seem to be such a big problem, barring the facts of a) retroactive telecom immunity and b) the implication that Bush will never be held accountable for numerous felonies. Unfortunately, it also really is, as far as I can tell, a back door to greatly expanded wiretapping powers. Beyond the obvious fact that it requires only certification and loose judicial review rather than a warrant, it does so in the following way:

1. It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)
2. It requires the cooperation of telecoms in these efforts
3. It eliminates of the need to specify a particular email address or phone number to be wiretapped
4. 1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage. There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.
5. The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.
6. It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.

One thing I can’t figure out is whether the new FISA bill is, as Obama and others claim, and “improvement” on the Protect America Act (even if it is still an evisceration of the 4th amendment). Glenn Greenwald insists that it isn’t:

the surveillance program implemented by Congress yesterday does not merely authorize most of the President’s so-called “Terrorist Surveillance Program” that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the “target” of the surveillance have any connection whatsoever to Terrorism

But I can’t find where it is that the Protect America Act limits targets to terrorist suspects — I’m still looking. Volkokhov gives reasons for thinking it is an improvement — although I think that’s small consolation.

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Terrorist Watch List Hits One Million Names (7/14/2008)

ACLU launches online watch list complaint form

FOR IMMEDIATE RELEASE
CONTACT: (202) 675-2312 or media@dcaclu.org

WASHINGTON, DC - The nation’s terrorist watch list has hit one million names, according to a tally maintained by the American Civil Liberties Union based upon the government’s own reported numbers for the size of the list.

“Members of Congress, nuns, war heroes and other ’suspicious characters,’ with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Congress needs to fix it, the Terrorist Screening Center needs to fix it, or the next president needs to fix it, but it has to be done soon.”

Fredrickson and Barry Steinhardt, director of the ACLU’s Technology and Liberty Program, spoke today along with two victims of the watch list: Jim Robinson, former assistant attorney general for the Criminal Division who flies frequently and is often delayed for hours despite possessing a governmental security clearance and Akif Rahman, an American citizen who has been detained and interrogated extensively at the U.S.-Canada border when traveling for business.

“America’s new million record watch list is a perfect symbol for what’s wrong with this administration’s approach to security: it’s unfair, out-of-control, a waste of resources, treats the rights of the innocent as an afterthought, and is a very real impediment in the lives of millions of travelers in this country,” said Barry Steinhardt, director of the ACLU Technology and Liberty Program. “It must be fixed without delay.”

“Putting a million names on a watch list is a guarantee that the list will do more harm than good by interfering with the travel of innocent people and wasting huge amounts of our limited security resources on bureaucratic wheel-spinning,” said Steinhardt. “I doubt this thing would even be effective at catching a real terrorist.”

Controls on the watch lists called for by the ACLU included:

* due process
* a right to access and challenge data upon which listing is based
* tight criteria for adding names to the lists
* rigorous procedures for updating and cleansing names from the lists.

The ACLU also called for the president - if not this one then the next - to issue an executive order requiring the lists to be reviewed and limited to only those for whom there is credible evidence of terrorist ties or activities. The review should be concluded within 3 months.

In February, the ACLU unveiled an online “watch list counter,” which has tracked the size of the watch list based on a September 2007 report by the inspector general of the Justice Department, which reported that it was growing by 20,000 names per month.

The ACLU is also announcing today the creation of an online form where victims of the watch list can tell us their stories. We will collect those stories and use them (with permission) in various ways to advance our advocacy. A link to the form is available online at www.aclu.org/watchlist or directly at www.aclu.org/watchlistform.

The watch list counter and other materials are available at: www.aclu.org/watchlist

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zack

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