NSA Eavesdropping: Have I Got This Right?
By Martin A. Knight Posted in User Blogs — Comments (252) / Email this page » / Leave a comment »
From the diaries by Leon H...
Here's my understanding of the NSA eavesdropping issue ...
(1) NSA is eavesdropping on US citizens if and only if the call or some other form of communication to that effect crosses US borders, i.e. is International in nature. According to GEN Hayden, this excludes calls between Dallas and Minneapolis but definitely includes calls between Boston and Tripoli.
(2) The targets of surveilance are those whose contact information was found contained on/in the information infrastructure i.e. laptops, palm pilots, notes, address books, phone records, etc. of Al Qaeda members discovered abroad and probably within the United States as well. Should these people contact others, those others are put under surveilance as well. As time goes on, people are added or dropped from the surveilance lists.
(3) The White House with support of findings from the Attorneys General (both Ashcroft and Gonzalez) informed the leaders of the House and Senate and the Chairmen and Ranking Mmebers of the Intelligence and (perhaps) Armed Services Committees of this program - this is the usual practice with very top secret operations. According to the New York Times, the White House apparently also informed the Chief Judge of the FISA courts.
(4) The White House and NSA has met over a dozen times (i.e. every 45 days since its inception) with the Congressional Leaders aforementioned and, (one presumes) the FISA court Chief Judge, to provide updates on this program's findings/discoveries. The President must re-authorize this program every 45 days for it to continue.
(5) FISA Courts regularly, promptly and discretely grant warrant applications. FISA Courts can even issue warrants retroactively up to the limit of three days after the target has come under surveilance. Why then did the Bush Administration not make use of the FISA courts? Apparently because the amount of documentation necessary to secure a FISA warrant includes the name of the target, the line to be targetted, etc. and other specific information which are somewhat anachronistic in the cellular age.
i.e. If, some Al Qaeda chieftain under NSA surveilance calls a cellphone in Maryland from Pakistan, that cellphone comes under surveilance and whoever owns it becomes a person of interest. At the point the MD cellphone attracts the attention of the NSA, there is no way of knowing who owns the phone. A FISA warrant therefore cannot be applied for. Furthermore any numbers called by that cellphone henceforth also comes under NSA net of surveilance.
Secondly, one can buy, use, discard and then buy another cellphone all in the space of one day. From what I've read, FISA does not have a provision for allowing the NSA to follow the person instead of the line. Furthermore, the anonymous and ubiquitous nature of cellphones and other forms of 21st communication means that gathering the documentation necessary to apply for a warrant would most likely take more than the 72 hours provided for in the FISA Act.
The problem from a security standpoint, I imagine, is that if it were operating under authority of the FISA Act, the NSA must cease and desist from monitoring that cellphone if it cannot or has not applied for a FISA warrant and that application has not been approved within 72 hours. What if the phone is used 80 hours after the start of monitoring to give the 'go' order?
However, it is true that such concerns, even if it would prevent a massive loss of life in one of America's (or any other nation's) cities, does not allow one, even the President, to disregard the law on domestic surveillance of United States persons.
(6) The President is claiming that the authorization of the use of force against Al Qaeda (and any other such (i.e. terrorist) organizations) given him by the Congress in the aftermath of 9/11 allowed him to direct the NSA to monitor all calls made to/from Al Qaeda members abroad from/to origins/destinations in the United States. It also empowered him to authorize the NSA to monitor the communications of those people found on the contacts lists of captured Al Qaeda members, whether they be in the United States or not. It may be a stretch but remember that Presidential war powers (the use of force) are usually interpreted in the broadest possible way by the Judiciary.
Have I got this right?
I must confess; if I've got this all correct, the President's actions do not make me fear being thrown into a concentration camp ... and I'm a Muslim!
To my mind, the President's actions/decisions have to pass the "reasonableness" test. I think they do. I would love to be disabused of this belief if indeed it