Top-Secret America

The Washington Post has a three part series on the top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001.

And in case you hadn't guessed, this bureaucracy is endlessly complicated, wasteful, and unchecked. And thanks to FISA and the Patriot Act, which basically legalized warrantless eavesdropping, the data flow is enormous:

Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications. The NSA sorts a fraction of those into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.

And yet they keep telling us we have to give up our privacy for our safety. But as Glenn Greenwald explained, all this surveillance is not keeping us safe:

But as I wrote many times back then -- often by interviewing and otherwise citing House Intelligence Committee member Rush Holt, who has been making this point repeatedly -- the more secret surveillance powers we vest in the Government, the more we allow the unchecked Surveillance State to grow, the more unsafe we become. That's because the public-private axis that is the Surveillance State already collects so much information about us, our activities and our communications -- so indiscriminately and on such a vast scale -- that it cannot possibly detect any actual national security threats. NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as "the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack."

This is almost enough to make me join the shouting teabaggers demanding smaller government -- except that the Queen Teabagger wants to exempt defense spending from the group's anti-spending fervor.

Be sure to read tomorrow's WaPo article which will surely describe how all this spending is making a few private contractors filthy rich while giving us nothing in return.

The Whistles Are Blowing

"It was a bright cold day in April, and the clocks were striking Thirteen..." — George Orwell, 1984

On this bright cold day in January, two days after the Bush presidency ended, whistleblower Russel Tice has come forward alleging that the NSA, under the direction of George W. Bush, spied on everyone, specifically targeting journalists. Keith Olbermann reported last night (if video doesn't show, click here and you can also watch part 2 here):

So let's think back and remember when Bush told us that his administration was not using the Patriot Act to violate civil rights. After all, "a wiretap requires a court order," Bush said. At least he demonstrated that he understood FISA. Of course, the liar had no intentions of following that law, but he understood it.

This news is being called a bombshell, but who is really surprised at this point? The Bush administration was not just wiretapping terrorists. They were not just wiretapping overseas communications. They were spying on Americans, specifically journalists.

There exists a segment of the population who might say, "so what?" But let's think about what this news means. They wiretapped journalists. They kept tabs on who and what reporters were investigating. They could identify potential whistleblowers. And certainly, private communications reveal private information. In other words, this is the stuff the government could smear and blackmail with.

And though Tice made no mention of this, who doubts that Bush was spying on members of Congress? What information did he have? What was he going to do with it? And does this revelation point to why Pelosi took impeachment "off the table"?

What else could Bush and friends do with everyone's communications? Corporate espionage to benefit his cronies? Just guessing. I'm not afraid to make these wild guesses, because everything I've vaguely suspected about the Bush administration has slowly been verified. I'm wondering what more will come out in the next year, and I wonder if any of it will shock me...

Here is some good news -- if we're not too cynical to believe it -- Dennis Blair, the man President Obama has nominated to head national intelligence, promised there would be no torture and no warrantless wiretapping on his watch. This is a good start.

What You Should Know About FISA

FISA stands for Foreign Intelligence Surveillance Act. It became a U.S. federal law in 1978.

The law prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens suspected of espionage) on territory under United States control.

What you should know about FISA is that it created the Foreign Intelligence Surveillance Court (FISC) which meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied is reported. In 1980, the court approved 322 warrants. In 2007, the court approved 2370 warrants. Check the FISA Stats web site to see that 99% of warrant requests are approved.

What you should know about FISA is that it has always had emergency provisions. The Attorney General has the power to authorize secret electronic surveillance and searches before any warrant is granted, or an application is made, for up to 72 hours. It was not a FISA weakness that prevented the capture of Zacarias Moussaoui prior to 9/11.

What you should know about FISA is that it was amended by the USA PATRIOT Act of 2001. One of these changes was to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped.

On December 16, 2005, The New York Time's reported that President Bush secretly authorized the National Security Agency in cooperation with major telecommunications companies to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.

On August 17, 2006 U.S. District Court Judge Anna Diggs Taylor ruled in ACLU v. NSA that the warrantless wiretapping program is unconstitutional and ordered that it be stopped immediately, on the grounds that such activities are violations of the rights to free speech and privacy.

What you should know about FISA is that it was again amended this time by the Protect America Act of 2007. This act was a response to the NSA ruling and modified FISA in several ways.

• It allows the Attorney General to issue program warrants for international calls without court review.
  
• It has no protections for American phone calls and emails that are caught up in an investigation.
• It gives the administration greater power to force telecom companies to cooperate with surveillance operations. The telecom companies can be compelled to cooperate by orders from the Attorney General and the Director of National Intelligence.

The Protect America Act expired on February 17, 2008. However, the underlying FISA did not expire.

What you should know about FISA is that yet another amendment was approved by the House of Representatives on Friday. This law is called the FISA Amendments Act of 2008.

• It ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.
• It permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.
• It permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.
• It further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court.
• It does NOT guarantee members of Congress not on Judiciary or Intelligence Committees access to reports from the Attorney General, Director of National Intelligence, and Inspector General.

What you should know about this amendment is that it has no public value for citizens or civil liberties.

What your should know about the Fourth Amendment to The United States Constitution is that it states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And that's the clearest government document I've read all day.