So, have you heard the latest? Your business records can now be taken away by Big Brother without a warrant, thanks to that Foreign Intelligence Surveillance Act-reform bill Darth Bush — an unstoppable force of nature with 30-percent approval ratings — just slammed through the notorious wallflower also known as the Democratic Congress. Yup, all the government has to do is pretend it needs your records — or your phone calls, or even your person — for a national-security investigation of someone overseas and — Presto! — your privacy rights are shredded.
It must be true. After all, it’s in the New York Times.
The Gray Lady’s latest chapter in FISA fear-mongering came this weekend, a purple page-one report from James Risen and Eric Lichtblau. They, of course, are the correspondents who got this whole ball rolling in late 2005 by informing al Qaeda and the rest of the world about a classified NSA program, fully disclosed to top Democrats in Congress as it ensued for over three years, which eavesdropped on suspected terrorist communications into and out of the United States.
In Times parlance, such monitoring of international enemy contacts, routinely carried out by every wartime president in history, somehow becomes “domestic spying” when George W. Bush employs it against an enemy that has managed to attack the United States — and, according to the intelligence community’s latest assessment, is working feverishly to do it again.
That is the subtext for Risen and Lichtblau’s Sunday “news” story about what is, in reality, a very tepid and temporary reform measure, grudgingly enacted before Congress skipped town for summer recess three weekends ago … and only because Democrats fear being blamed for the intelligence crisis they have created slightly more than they quake at the wailing of their nutroots. The Times now claims:
Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States. These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns. For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said. [Emphasis added; paragraphs collapsed.]
That’s strange, I thought. The bill does not appear to address the acquisition of business records at all, much less work a startling change allowing government to seize them willy-nilly. Nor does it seem to have anything to do with the execution of physical searches or “trap and trace” surveillance. Nor, indeed, is there anything remotely “new” about such “powers” — business records, searches, and “trap and trace” (or pen-register) monitoring (by which government gets phone and email usage information but not the content of communications) are long-time staples of both law-enforcement and intelligence investigations. They are controlled by elaborate statutory procedures which the reform bill does not seem to alter.
Nor, moreover, does it seem plausible that, as the Times report suggests, Democrats voted for the reform bill without grasping what was in it. This was no omnibus, multi-volume budget extravaganza. We’re talkin’ 14 double-spaced pages — straightforward, easily read, and reread in nothing flat, bereft of crevices for hiding explosive provisions. Even allowing for the limited attention spans of lawmakers forced to work the weekend while tapping their feet like kids on the last day of school, you have to think we’d have heard about any seachanges while the bill was being considered.
ONLY THE TIMES
But, I figured, maybe I am just dense. True, Risen and Lichtblau don’t even try to explain how the reform bill’s language supports their business records hypothetical. But given that they are such reliably even-handed journalists, surely they’d offer an alternative view from other “experts” if there were one to be found, right? After all, the Times wouldn’t be proselytizing about a new police state on its news pages, would it? It’s just trying to give us the straight scoop: “All the news that’s fit to print,” no?
So I checked with the radical American Civil Liberties Union. Certainly, I imagined, it would elaborate on the hidden landmines the Times has found. After all, the ACLU so despises the bill that it has put out a “fact sheet” sniping that the new law should be called the “Police America Act” (it is actually called the “Protect America Act”). Yet for all its predictable bombast, nowhere does the ACLU repeat, much less explain, the Times’s spin that FISA reform has left us wholesale exposed to the snatching of our files, the scrutinizing of our phone usage, and even the violation of our persons.
It also turns out that no less a doctrinaire civil libertarian than the University of Chicago’s Geoffrey Stone has weighed in on FISA reform, as a guest blogger for the American Constitution Society. As he has throughout the NSA controversy, Professor Stone makes a number of misleading and inaccurate claims; but even he, like the ACLU, limits his complaints to the actual subject matter of the bill: telecommunications. Nothing about business records and the like.
The Times is engaged here in the worst kind of journalistic abuse. Risen and Lichtblau sprinkle their story with the names of several experts, but not a single one is identified as standing behind the explosive claims quoted above. Those are attributed to “experts” — unnamed. And unnamed for good reason: What the Times represents as a respectable, mainstream interpretation of the new law is actually a fringe construction unsupportable by any coherent reading.
All the very narrow reform bill really accomplished was a return of FISA (and only for the next six months) to its original design, stripped of the gloss recently imposed by the imperious FISA court. The law gives Americans modest protection against some forms of national security surveillance but otherwise acknowledges that the NSA and CIA have a free hand to target people outside the U.S. — especially if, as is usually the case, these overseas targets are contacting people who are also outside the U.S.; and even if, as is sometimes the case, they are contacting people who happen to be inside our country (and may or may not be Americans).
The reform bill allows the attorney general and the director of National Intelligence to “acquire foreign intelligence information concerning persons reasonably believed to be outside the United States.” Could that information implicate Americans? Of course it could. If the government is monitoring an al Qaeda operative in Afghanistan and he happens to call you, an American citizen in, say, St. Louis, it will monitor your conversation. But just your calls with him. If the government then wants to take the next step and monitor all your calls, get your business records, or search your house, it still has to go to the FISA court to get authorization. The new law does not change that.
This sort of thing, furthermore, is routine. When I was a prosecutor, I might subpoena — without any court supervision — the phone records of a pizzeria used by the mafia as a drug-trafficking front. If you called for a pepperoni (hold the anchovies), I suppose the Times could say I got your phone records (i.e., records of whatever calls you made to the target phone). If the call was placed from your office, I guess correspondents Risen and Lichtblau could even claim I seized your business records. But was I engaged in domestic spying? I rather think most Americans saw it as competent investigation.
An investigator can’t tell the phone company, “Just give me the relevant calls.” The investigator’s job is to get all the calls and figure out which ones are relevant based on everything else he knows. Thus, the investigator monitors all the target’s calls for a particular timeframe. Since it takes at least two to tango, that necessarily means the investigator monitors the other end(s) of the conversations. It is a minor intrusion on everyone’s privacy, but the trade-off is that if mafiosi try to use pizzerias to sell dope, we can prosecute them, and if terrorists are trying to blow up a city, we have a chance to stop them. Outside the New York Times and the academy, most people think this is a fairly significant upside.
POLITICAL ACCOUNTABILITY OR FISA?
FISA is a foolish law. As I’ve argued here, the best solution would be to cashier it. That, though, is a serious conversation. It would require us to come to terms with the fact that foreign-intelligence collection is a political responsibility that should not be overseen by an unaccountable court; with the fact that FISA’s “probable cause” standard is impractical in a threat environment dominated by embedded jihadists whose strings are pulled by overseas masters; and with the fact that, though our enemies take full advantage of the telecom revolution, FISA would tether us to the ball-and-chain of three-decade-old technology as we try to keep up with them.
Of course we don’t want to surrender more privacy than is reasonably necessary. But do we really expect the same privacy calling Afghanistan (a war zone scoured by every intelligence agency in the world) or even England (where U.S. law does not control) as we do when we call Cincinnati? Is it really objectionable if the government can harness the same information about you as a bill collector or that annoying telemarketer who always manages to call just as you’re sitting down to dinner with your family? Last I checked, neither the bill collector nor the telemarketer was trying to keep anyone alive.
Bush Derangement Syndrome is such that many people — including the newspaper of record — don’t want to have a serious conversation about the proper balance between privacy and security. They prefer to misrepresent laws and proposals while hinting at dark conspiracies. It would be nice if they’d notice that the Bush administration, for all intents and purposes, is over. This argument is about what powers must be available to the branch of government charged with ensuring public safety; it is not about which person or party is wielding those powers at the moment.
I would prefer that Senator Clinton not be elected president. If she is, however, I want her, not the FISA court, to decide who gets monitored. Further, I am content to trust oversight to the other branch that must face the voters whose lives are at stake, not to a judge insulated from the electoral process and free to indulge his or her subjective notions of due process.
Immediately after 9/11, everyone in America was outraged by the “wall” which impeded intelligence-sharing and destroyed any hope of averting the attacks. Not surprisingly, the president and Congress tripped over each other in the rush to knock it down, then spent the next few years pleading with voters to understand that its erection and maintenance weren’t really their fault. By contrast, the FISA court, unconcerned with such irrelevancies as voters, tried to rebuild the wall by judicial fiat. Just as that same court has judicially legislated a new FISA this year, giving more due process to foreign spies and terrorists, and thus crippling our ability to monitor them. So what just happened? Despite control of both Houses by Democrats, the darlings of the ACLU, Congress dared not leave town two weeks ago without undoing that judicial excess. Members, after all, were headed home to face their constituents, not the Times Washington Bureau.
True national security is politically responsive security. Judicially managed security, otherwise known as FISA, is a ticket to another 9/11.
– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.