Secret Spy Ruling Contaminates Debate

So much depends
upon

a spy court
ruling

glazed with secrecy
codes

inside the hoover
building

Last spring the ultra-secret Foreign Intelligence Surveillance Court ruled against the Bush Administration's "innovative" wiretapping program, setting in motion the Administration's frenzied push last summer for widespread powers to install wiretapping equipment inside the United States with only minimal court oversight.

During that push, Republicans let slip that the secret court had ruled against the Administration in some wiretapping case, but the Administration refuses to release or actually describe what the ruling says.

The closest anyone has come to actually describing the ruling is from a New Yorker profile of the Director of National Intelligence Michael McConnell:

McConnell said that federal judges had recently decided, in a series of secret rulings, that any telephone transmission or e-mail that incidentally flowed into U.S. computer systems was potentially subject to judicial oversight. According to McConnell the capacity of the NSA to monitor foreign-based communications had consequently been reduced by seventy per cent.

Essentially McConnell is saying that the secret court not only decided that the domestic wiretapping program was illegal, it also decided that virtually everything the NSA had done over the last 30 years overseas was illegal.

In other words, McConnell claims the NSA couldn't intercept a terrorist's e-mail by tapping a fiber optic cable in Pakistan, if there was a chance the message would pass through a U.S. router or end up in a Hotmail account.

As I wrote in an earlier post:

I'm no rich man, but I'll bet any reader $1,000 that, when and if those rulings are ever released, we'll see they say no such thing. Send me an e-mail to take me up this bet. U.S. government officials are welcome to participate.

The FISA law that created the Foreign Intelligence Surveillance Court only applies to intercepts that physically happen within the borders of the United States. The NSA has always been free to intercept foreign communications overseas – the mission for which they were created and funded – even if the call passes through a U.S. switch.

Basically one has to believe the following story:

In 2007, under political pressure, the Bush Administration took its secret, warrantless wiretapping program to one of the judges of the secret court, who approved its "innovative" orders – meaning they didn't adhere to traditional search-warrant requirements.

This was a political win for the administration, which could now say it stopped its warrantless wiretapping.

Then, when the orders came up for renewal in a couple of months, a different judge struck one of them down. And another judge struck another one down. And in the process of striking down an innovative new approach, the FISA court judges decided to take the opportunity to reverse 30 years of NSA work by saying that wiretaps placed outside the country had to have court approval if any of the communications flowed at some point through U.S. facilities.

So the court judges not only reversed a significant win for the administration; they also took the opportunity to radically throttle the NSA by rewriting the nation's surveillance laws to allow the court to have oversight over surveillance conducted outside the United States.

THREAT LEVEL isn't buying it.

Simply put, the FISA law is intended to prevent the NSA from operating inside the United States, unless they can prove their case to a judge.

What the court likely said is that the "innovative" orders were not specific enough to allow wiretaps to be placed inside the United States, even if all the targets are overseas.

The National Review's Andrew McCarthy does buy it, however, basing a Monday column on his belief that the secret court overturned the FISA law.

Until 2007, however, when the selfsame FISA court suddenly rewrote 30 years of law and practice, probable-cause was never our standard for collecting intelligence overseas. That’s because having "probable cause" means you already know someone is a danger. What we try to do overseas — or, at least, what we used to try to do overseas before the FISA court assumed the law-writing and intelligence-management jobs of the other branches — is figure out who may be a danger. Especially when our current intelligence gap involves previously unknown terrorist groups, it is absurd to hamstring surveillance coverage with a probable-cause burden — if we had probable cause, the threat wouldn't be unknown

So, if a previously unidentified terrorist cell in Iraq kidnaps an American marine, or if a previously unknown jihadist group is planning the next 9/11 in Peshawar or Hamburg or Madrid, Rockefeller, Leahy, Reyes, and Conyers think it's perfectly fine that no American surveillance be permitted unless a federal judge in Washington approves it.

Now all of that is true and ridiculous – if the secret court's secret ruling actually says that using a wiretap in Pakistan needs court approval because some of the bits might flow through U.S. internet tubes.

That's exactly the basis for the attack ads running against Democrats around the country – funded by an offshoot of the Foundation for Defense of Democracies, where McCarthy is a senior fellow.

The thing is that all four Democrats named by McCarthy have seen the secret court orders. They can't talk about them, but they have seen them.

Which leads me to my final attempt to clear this up: I've asked one of those four to confirm or deny the truthfulness of the following statements – which are essentially the longstanding rules of surveillance.

Under FISA as interpreted by the courts, the NSA can wiretap overseas without court oversight – since it is not defined as surveillance. Any overseas wiretapping is ruled by Executive Order 12333. If the foreign surveillance targets a foreigner and that target communicates with a U.S. person inside the United States, minimization rules come into play via EO 12333, but no court order is necessary.

The thing is, if the surveillance court ruled as McCarthy thinks they did, then the senators can't answer the question.

Which is to say that the senators engaged in a debate over surveillance laws are legally barred from explaining how the nation's surveillance laws work, because part of the law is public, but another part that supersedes the published part remains secret.

On the other hand, McConnell and the vice president and president are equipped with declassification powers and thus are free to say whatever they like about the rulings – including inducing journalists to mislead people and describing the dire consequences of the rulings.

Such is the state of debate in a country with secret laws.

See Also:

• House Democrats Stand Up To Bush, Refuse to Rubber Stamp Domestic ...
• FBI Recorded 27 Million FISA 'Sessions' in 2006
• NSA Must Examine All Internet Traffic to Prevent Cyber Nine-Eleven ...
• NSA Must Examine All Internet Traffic to Prevent Cyber Nine-Eleven ...
• Surveillance Doesn't Mean What You Think It Means

Photo: Randen Pederson