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FISA: Klein’s Source Was Hoekstra And Other Unforced Errors

constitution_1.jpg[Please welcome Caroline Fredrickson of the ACLU to discuss the pending FISA/RESTORE legislation.  As always with guests, please stay on topic and be polite — any off-topic discussions should be taken to the prior thread.  — CHS]

As the Joe Klein flap (H/T Glenn) has raged forward, with one Time misstep after another, I kept asking myself from whom he could have gotten such inaccurate information.  Wonder no more:

Klein Kerfuffle
FISA facts.

By Peter Hoekstra

Over the last week, a venomous debate has raged between Time columnist Joe Klein and his far-Left critics about the meaning of Democratic legislation aimed at how foreign targets in foreign countries are treated under the Foreign Intelligence Surveillance Act. With respect to the arguments of his critics, Klein rightly pointed out that, “This is all a partisan waste of time, fodder for lawyers and civil liberties extremists.” He also was correct that we should be seeking bipartisan consensus on critical national security issues rather than using them as pawns to further extreme political agendas.

As one of Klein’s sources for the complex technical and legal points that seem to be in contention — and because Klein, his critics, and Democrats in Congress have accused Republicans of trying to “misrepresent” these issues — it is important to correct and clarify the record on three critical points, which also bear heavily on the broader debate currently at hand.

First, the issue in both the Protect America Act that became law in August and the legislation currently under consideration in Congress, is how to ensure effective surveillance of foreign intelligence targets in foreign countries. The issue is not nor has it ever been about surveillance of Americans, as some Democrats have irresponsibly suggested. Under any of these bills, if the intelligence community wanted to target an American in the United States for surveillance, it would need to obtain an individualized court order.

The straw-man complaint of the Left, however, is that Americans who talk to targeted foreigners in foreign countries might incidentally have their conversations intercepted. It takes a pretty good degree of self-absorption or paranoia for someone to believe that efforts to target al-Qaeda operatives in foreign countries are somehow about them. If someone in the U.S. is talking to al-Qaeda, I believe most Americans would not find it controversial that the intelligence community needs to know about it and in fact would expect our intelligence professionals to be aware of it….

And it keeps on going.  The level of mendacity in this self-serving, factually and legally inaccurate tripe would be shocking if I didn’t see the reason for it:  Klein is in a bind for not double checking on his facts, Time is embarassed because they didn’t bother to do so either, and Hoekstra is livid that his GOP tap dance is in danger of being exposed as shill service for the WH — so he’s trying to spin his way out of the inaccuracies of his own planting. 

What Hoekstra hopes for is that, again, members of the press and the public won’t bother to read the FISA language and the RESTORE Act itself.  Or the Fourth Amendment.  (Please note that I’ve linked up an annotated version here for those who need extra explanatory information on constitutional and rule of law principles.)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis mine)

Please also note that the 4th Amendment doesn’t have language to the effect of “enforce when you feel like it” (as we have already parsed any number of ways) and that it does not apply to foreigners.  Period.

Wired has a very simple explanation as to how this is actually working:

…Under FISA when the NSA wants to spy from inside the United States (other than capturing radio waves), the NSA has to prove to a court that it has probable cause to believe the targets are terrorists or spies. Then the court lets NSA order Google to help it spy. If its an emergency, the NSA sends the order, then convinces the court.

Under the Protect America Act, if the NSA thinks these guys aren’t going to be communicating with Americans (in this and many cases, highly unlikely), it can just order Google to comply. No warrant is necessary.

If the targets then do write to an American through the Gmail account, the government has to “minimize” the information, or if they want to use it to target the American or keep the name of the American for intelligence purposes, they have to go prove to the court that the targets are likely bad guys. If the communication with the American shows a likely attack, the government can use it without a court order.

If the government suspects that targeted “persons” it thinks are foreigners might communicate with Americans AND they want to wiretap from inside the United States, it can ask the court for a warrant that lasts for a year. All that must be proved is that the targets are likely to be bad guys. The information sought doesn’t even have to be related to terrorism – it simply has to be ‘foreign intelligence’ information.

Any communications with Americans has to hide their names, unless a fairly high level official decides it is necessary to know the name to understand the communication or if it is necessary for national security.

Now, the statute uses the word “persons” in this section.

Klein seized on this to say that the bill gives the same rights to terrorists as to Americans, since some Republicans say the word “person” means the government must individually name each foreign target when it wants an order to wiretap inside the United States. Dems say that’s silly.

The correction basically says it’s impossible to know.

But FISA defines person as “any individual, including any officer employee of the Federal Government, or any group, entity, association, corporation, or foreign power.”…

Also more here.  Reporting skillz 101: read the original material and take no one’s word for anything without double and triple checking it. Get opposing points of view.  Not so hard. And yet, unfortunately, not done nearly enough.

Given the recent federal court decision in the EFF suit requiring fast track release of telecom lobbying actions (PDF) on behalf of immunity on this legislation (more here), I think we all need to take a step back and ask ourselves why exactly they are in such a rush to shield themselves retroactively and prospectively from civil and criminal penalties if they don’t think they broke the law in the first place?  Because it seems to me that handing them a grand gift of forgiveness for blatantly breaking expressly drafted US law runs contrary to everything I know about squeezing a perpetrator who has made wholesale admissions against interest.  Let alone asking questions about the rampant use of the state secrets doctrine to cover governmental tracks on extralegal activities. 

But then, perhaps that’s because I’m looking at this through an enforcement of the rule of law lens as opposed to a milking my latest cash cow one.

Which leads me to today’s guest, Caroline Fredrickson, director of the ACLU Washington Legislative Office.  We’ve asked Caroline to give us an update on the status of the various FISA law updates in the Senate and House, and to talk about the outstanding legal questions and problems that remain in each, let alone the legislative questions.  And what we can do to help with all of this.  With that, I welcome Caroline and open the floor to questions.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com