dapperdan
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A pretty interesting set of developments regarding the FISA laws came together extremely quickly in the last couple of days.
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070806/EDITORIAL/108060002/1013
http://www.nytimes.com/2007/08/06/w...int&adxnnlx=1186406694-JJ86bmugBPNABPcyvOZvhQ
http://www.westhawk.blogspot.com/
It is interesting to observe how humans behave in response to an unexpected shock. A mysterious U.S. federal judge delivered that shock. Democratic Party senators and congressmen were forced over the past few days to respond.
An unknown U.S. federal judge, assigned in secret to the Foreign Intelligence Surveillance Act (FISA) court, recently issued a ruling that shut down the U.S. electronic eavesdropping of foreign terrorist plotters. Just as a recent National Intelligence Estimate concluded that al Qaeda had reconstituted itself and was in a position to re-strike the U.S. homeland, this anonymous FISA judge shut down the government’s best tool to prevent another attack.
The FISA judge’s action was far more damaging to the surveillance effort than either the leakage of the existence of the program to the New York Times or the ongoing debate about the program and its parameters in Washington. Certainly it would have been better for U.S. security if al Qaeda had never known that its phone calls and internet traffic were under surveillance. But even as the monitoring continued after its disclosure, al Qaeda conspirators would be forced to curtail their use of modern telecommunications, damaging their ability to organize.
The FISA judge rendered the worst possible result for U.S. security, the suspension of the program, thus freeing up al Qaeda to communicate and organize. How could this happen? We won’t know the judge’s reasoning because the FISA court opinions are secret (maybe a court clerk will leak the opinion to the New York Times?). But we can guess that the reason was a strict interpretation of the FISA law (passed in the 1970s), now hopelessly obsolete in the context of modern telecommunications technologies. Modern communications travel by “packet switching,” with the information packets from a cell phone call or email transmission from Lahore, Pakistan to London likely to transit computer servers in the United States. It is likely that the FISA judge held up his hand at this point and said, “You’ll need a warrant.”
The FISA judge may have had another motivation. He may have wanted to force the Congress to explicitly approve this government surveillance power; many believe that such wide-ranging eavesdropping authority should not be a power the Executive can grant to itself. In retrospect, the Bush administration should have asked for this expanded and clarified FISA authority in October 2001, and done so in a way that would have removed any doubts about its legality. The Administration chose not to explicitly ask for the authority because it wanted to protect the program’s operational security, a judgment that would last only until some staffer decided to leak to the New York Times, as happened.
http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070806/EDITORIAL/108060002/1013
http://www.nytimes.com/2007/08/06/w...int&adxnnlx=1186406694-JJ86bmugBPNABPcyvOZvhQ
http://www.westhawk.blogspot.com/
It is interesting to observe how humans behave in response to an unexpected shock. A mysterious U.S. federal judge delivered that shock. Democratic Party senators and congressmen were forced over the past few days to respond.
An unknown U.S. federal judge, assigned in secret to the Foreign Intelligence Surveillance Act (FISA) court, recently issued a ruling that shut down the U.S. electronic eavesdropping of foreign terrorist plotters. Just as a recent National Intelligence Estimate concluded that al Qaeda had reconstituted itself and was in a position to re-strike the U.S. homeland, this anonymous FISA judge shut down the government’s best tool to prevent another attack.
The FISA judge’s action was far more damaging to the surveillance effort than either the leakage of the existence of the program to the New York Times or the ongoing debate about the program and its parameters in Washington. Certainly it would have been better for U.S. security if al Qaeda had never known that its phone calls and internet traffic were under surveillance. But even as the monitoring continued after its disclosure, al Qaeda conspirators would be forced to curtail their use of modern telecommunications, damaging their ability to organize.
The FISA judge rendered the worst possible result for U.S. security, the suspension of the program, thus freeing up al Qaeda to communicate and organize. How could this happen? We won’t know the judge’s reasoning because the FISA court opinions are secret (maybe a court clerk will leak the opinion to the New York Times?). But we can guess that the reason was a strict interpretation of the FISA law (passed in the 1970s), now hopelessly obsolete in the context of modern telecommunications technologies. Modern communications travel by “packet switching,” with the information packets from a cell phone call or email transmission from Lahore, Pakistan to London likely to transit computer servers in the United States. It is likely that the FISA judge held up his hand at this point and said, “You’ll need a warrant.”
The FISA judge may have had another motivation. He may have wanted to force the Congress to explicitly approve this government surveillance power; many believe that such wide-ranging eavesdropping authority should not be a power the Executive can grant to itself. In retrospect, the Bush administration should have asked for this expanded and clarified FISA authority in October 2001, and done so in a way that would have removed any doubts about its legality. The Administration chose not to explicitly ask for the authority because it wanted to protect the program’s operational security, a judgment that would last only until some staffer decided to leak to the New York Times, as happened.
