Jan 07 2006

It Is Not FISA vs. NSA

Published by at 12:47 pm under All General Discussions,FISA-NSA

Misinformation and diversion are a science. I have seen people present one subject, then discuss a completely different one, and then go back to the other subject. In this case the audience of the briefing naturally concluded there was a connection between the two – but none had been made. The guy was presenting the problems with their SW deliveries and why they were late, he then did a couple of viewgraphs on proper SW methodology, then went back to the issues.

Being the person I am, I asked what the SW process information had to do with the issue at hand. He admitted it had very little to do with it, he was just trying to show what is the proper methodology. What he was trying to do was imply a connection by presenting the information.

This is a simple example of diversion and misinformation. Advertisers do it all the time (you really think women will swarm all over you if you use the disposable shaver?).

The NSA-FISA flap is also misinformation and diversion. And Risen was played like the sucker he is, and so did the NY Times. Just like in Rathergate, the preconceptions on Bush, and the desire to get Bush, allowed someone to feed a story to these people to run with. It had sufficient reality in it to be believable, like a good Sci Fi story. But it was also part fiction. It allowed a connection to be made that probably does not exist.

And that fiction is the now assumed fact Bush either used the NSA or FISA to monitor phone conversations between terrorists overseas and their contacts here in the US.

Why? Why is it either-or? The claim is the administration monitored communications between people in the US and terrorists overseas without a warrant. That is a fact admitted to by the administration. But the question left out hanging for people to leap to is whether it was legal. The administration says it is legal, but never explains why in detail. They could, but why they don’t is an interesting question. Are they restricted by security requirements? Or are they feeding rope to those who exposed one of our most secret and important tools against terrorism. I let you decide.

Most people try and approach the question of legality from the same either-or perspective. So they make arguments about how in war Bush can avoid FISA. But what they neglect to consider is the NSA and FISA working just as they are supposed to, which would lead to warrantless, and legal, monitoring of communications between someone in the US and a terrorist overseas. For a time.

Yes, that is right, there is completely simple explanation – and obvious once you step back from the wild speculation and conspiracy theories. The Bush defenders are falling into the trap of trying to argue the conspiracy theory, verses exposing it as a conspiracy theory. That is like trying to argue why the NSA has a brain control beam, verses debunking the idea a brain control beam exists.

It is not either-or with FISA and NSA. A good diversionary misinformation campaign takes something simple and real and tweaks it just enough to make it sinister, yet possible. That is what we have here. For people regularly reading my site I am going into broken record mode now.

The NSA is legally authorized to monitor an overseas ‘target’ who is, or highly likely to be, a terrorist. This is a legal surveillance, yet it is warrantless. Its counter part in the US is the surveillance of a ‘target’, but to be legal it must be validated by a court warrant. In both legal cases, there is the target of the surveillance – which is key because the target determines whether the surveillance requires a warrant or not, and which US agency conducts the surveillance.

Obviously overseas targets which are deemed terrorists do not require a court order and the monitoring can be done by one or more intelligence agencies (DIA, CIA, NSA, etc). US based targets need a FISA court warrant if it is related to terrorism and the agency that must conduct the surveillance it DoJ (FBI).

In all surveillance efforts, people (contacts) communicate with the targets and become monitored. These communications can be monitored legally under the authority of the surveillance used to survey the ‘target’ in the first place. Contacts communicating with targets of a surveillance effort will have their communications with the targets monitored – but it can only be those communications.

I belabor this point so people understand that when NSA monitors terrorists overseas, it is a legal warranted warrantless surveillance, and anyone communicating with the target is fair game – but only those communications with the target! So it is completely legal and expected that if the NSA has targeted an Al Qaeda mastermind overseas trying to conduct attacks here in the US, we would intercept and monitor the communications of some person or persons in the US with the mastermind overseas. We would really want this to be the case if we want to avoid attack!

So that is part one of a legal and normal scenario of NSA monitoring communications from the US to an overseas target. But does that mean no FISA? Of course not! What happens next is why the either-or argument is simply wild, conspiracy theory speculation.

Once the US contact is investigated (most likely by the FBI) to make sure it is not some innocent communication (e.g., hotel reservations – which don’t result in surveying the hotel’s communications) then the FBI will want to now make this US contact a target themselves of surveillance, and they will take this lead to the FISA court. This is how an NSA target of surveillance uncovers a US lead, which then becomes an FBI target of surveillance via FISA warrant.

In other words the sequence starts with a legal warrantless monitoring, then transitions into legal warranted monitoring.

Now let’s look at the either-or argument again. Obviously the evidence is this sequence did happen, multiple times, because the leftward side of the FISA Court is concerned that NSA leads were used to ‘taint’ FISA warrants. The NSA information is definitely going to be used to establish probable cause for the FISA warrant. So since the FISA judges are upset it happened, then it must of happened. So the evidence is the normal process we expect did happen. There is no evidence provided yet the FISA process was ‘bypassed’.

In fact, nowhere do the FISA judges complain about being bypassed, which you would expect them to do if the administration created a target of surveillance in the US without FISA approval. Not one concern about missing FISA warrants. None. Nada. Zip.

So, did anyone ever find a case where Bush bypassed FISA? I have yet to hear of one. The only claim I have seen is there was monitoring of a person in the US without a warrant, which obviously can happen. And happen legally if NSA and the FBI are doing their jobs right. But all this talk about bypassing is a wild leap of fantasy from the core complaint – monitoring without a warrant.

The entire issue relies on people NOT knowing the process enough so as to assume NSA bypassed FISA, verses preceding it. That is where people are jumping too far out on this issue.

What an excellent diversionary misinformation campaign. The entire country, ignorant of intelligence gathering and FISA processes (as was I when this started), but gorged on spy movies, the TV series 24 and decades of conspiracy theories about corrupt government leaders, leapt to the conclusion that Bush is ‘spying’ on Americans. Good job to which ever rogue intel agent(s) thought this one up. Quite masterful.

Now I am speculating, of course, that there is nothing but normal procedure going on and some partisan dirty tricksters are leading the media around by their noses. Which is more realistic and plausible? Bush spying on Americans (who just happen to be talking to terrorists overseas) or the media being spun by some propaganda pros?

BTW, since Bush’s most damaging information against these US contacts IS their communication with the terrorists overseas – why would he need to monitor these US contact for more ‘dirt’, and therefore ‘spy’ on them? If FISA is such a rubber stamp, why would he not send this US contact of terrorists overseas through FISA to further cover up his ‘spying’ on this person? Who in their right mind thinks Bush is the one who selects the targets here or overseas to be ‘spied’ upon??

See how silly the either-or scenario sounds when banged against a little common sense?


To prove my point that there is only one claim out I point you to the NYTimes own explanation on why they decided to print the Risen article

Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program — withholding a number of technical details — in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the N.S.A. can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the N.S.A. has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority — not the need for a robust anti-terror intelligence operation — that prompted debate within the government, and that is the subject of the article.

Emphasis mine. Clearly what the NY Times and their rogue agents in the government are claiming is simply that NSA monitored people in the US without a warrant. People jumped to the conclusion this meant they went around FISA. But nowhere is that claimed. When combined with the complaints of FISA judges that information from the warrantless NSA monitoring was being used to obtain FISA warrants, the only conclusion we can make right now points to NSA data going to FISA for warrants on people in the US – and nothing more.

So, has the country been played like a fiddle? Why didn’t the NY Times come out and say that the concern was bypassing FISA (a real problem) verses the arcane warrantless monitoring of people in the US?

Simple. Because the story mutated to one about bypassing FISA, though no one has made that claim formally, and the NY Times is no more interested in clearing this up than the Bush administration.

7 responses so far

7 Responses to “It Is Not FISA vs. NSA”

  1. Seixon says:

    That makes sense I guess, but I am still wondering why they didn’t apply for a warrant within the 72-hour grace period. Is there any real good answer for that? Seems to me like they should have done this.

  2. AJStrata says:

    Seixon, who says (a) they didn’t and (b) they have to? If the NSA is monitoring a target overseas, then all who communicate with that target are fair game – but only for those communications with the target. So the US person’s contacts with the target can go indefinitely.

    If they lead is then passed to the FBI and they file for a FISA warrant, then there is no need either – unless they started monitoring the US contact as a target (i.e., all their communications, not just those with the NSA’s target) before the application. Then they would use the 72 hour rule.

    Again, I have not seen any claims the administration did not do this. All I see are claims people were monitored who were in the US. That is not an apples to apples comparison.

  3. luc says:

    There seems to me that another important point is not being stressed enough: what does the Governemnt have to provide the FISA Court in order to obtain a warrant? I seem to have read that the FISA court can only approve or reject an application for warrant but not ask for modifications in the application and in the case of a rejection the Governemnt has the option of appealing.

  4. MerryJ1 says:

    Nice catch, AJ, that makes sense.

    There is also a recalcitrant element within the FISA court itself, though, with an apparent belief in its own foreign policy omnipotence. I’d dearly love to see a couple of those judges in the defendant’s dock alongside NY Times, et al.

  5. antimedia says:

    Finally!! Someone who’s paying attention!! I’ve pointed out repeatedly, to no avail, that the NSA is a MILITARY organization, NOT a law enforcement agency (hint, hint) that has no ability to investigate or prosecute anyone, but it seemed like no one was listening.

    Good post.

  6. trentk269 says:

    The NY Times admitted that this story has been on hold for more than a year. Does this have anything to do with information given the Times during the election to smear Bush? Just asking. If not, why the curious timing, coming just before a presidential election from concerned patriots within the intelligence community?

    The law is apparently on the President’s side in this; clearly, NSA has been monitoring overseas calls for decades without violating any law.

    This is really beginning to look like an “October Surprise” to influence the 2004 election, more than anything else. I have no idea why the Times didn’t run it (Lord knows they’re dedicated to factual news presentation and fair play), but do the words “forged Texas Air National Guard documents” ring any bells?

  7. Seixon says:

    I guess the whole “controversy” is people not trusting the Bush administration and the NSA in saying that they only monitored people in the USA who were contacted by foreign targets.

    The Congressional Research Committee or whatever its called says as much in their report, that without knowing all the facts about when and how these operations went down, they cannot conclude whether or not the actions were legal or not.

    I would support a Congressional hearing on this issue, just to get all the facts on the table and make sure that the Bush administration does have all the right cards on the table. If they have operated honestly, there’s going to be no harm in this. In fact, it would backlash on the Democrats and the NY Times for jeopardizing national security while the Bush administration was doing all in its power to stop terrorism – if that is in fact what has been going on.