Oy...

While I've been busy conventioneering, it appears that the House of Representatives passed a really unfortunate surveillance bill. Spencer Ackerman reports on the White House's direct interventions to thwart a compromise and here's Marty Lederman on the bill itself.

Anyways, the Democratic presidential candidates all seem opposed to this, but I'd put the odds of any of them actually taking action to reduce their own powers once in office at approximately zero percent. Then, perhaps, at some point years from now, some story will break about a truly abusive use of these surveillance authorities (just look at what Elliot Spitzer did with the State Police and imagine what uses an oversight-free mass wiretapping scheme could be put to) and there'll be some kind of rollback.

Comments

Matt, I love your common sense and your very astute observations on practically everything you choose to talk about. But we've all been conventioneering for a long time now, and I think we're all going to go on conventioneering for a lot longer. At a time when less than a third of the legislature are willing to say no to a redaction of long and dearly-held protections of our civil liberties, liberties for which millions have bled and died, I think we can pack up this little experiment in representative democracy and recognize ourselves for what we have become: an oligopoly of fear. The present administration and its Democratic enablers have bulldozed every protection, civil, economic, and social, created for and enjoyed by the vast majority of the American people. I read the first three volumes of Gibbon's "Decline and Fall..." recently, and I had always wondered how the Romans, with their history of republican government (and nothing near as egalitarian as ours) could suffer a Caligula or Nero. Now I know. The parallels are frightening.

Posted by Primigenius | August 5, 2007 12:51 PM

Shorter Yglesias: Don't worry. This will all change once massive abuses of our civil liberals occur and are exposed.

Posted by Roberto | August 5, 2007 1:04 PM

*meant "liberties" not liberals. Although I'm sure massive abuses of civil liberals will occur too.

Posted by Roberto | August 5, 2007 1:05 PM

The question is: will the presumably Democratic next president continue to emphasis the dangers of terrorism now that the Republicans have demonstrated how useful it can for grabbing and holding on to power?

Posted by GlenO | August 5, 2007 1:14 PM

Didn't Clinton roll back some of the exec. branch surveillance powers? I feel like there was a small move in that direction.

My hunch is the bits about communications between foreigners-- or in all probability foreigners -- that travel through US will stay, but the "we don't know who they are" bits really will have to go.

Posted by Nicholas Beaudrot | August 5, 2007 1:18 PM

How did this happen? Are there pictures of dems in bed with dead boy goats? This is the lowest point I can remember for any Congress. They just got steamrolled. Absolutely trounced by a guy with no support. Bush's DNI cut a deal and Bush said not good enough and they just gave up. They just quit. Their poll numbers are going to be below Bush's. They are not different in any important way from the Republicans. This is a gigantic fuck up and the way out may not even exist. This cleans up the Gonzales mess and allows the government to search all electronic communication without a warrant in the name of doing something (spying on foreign terrorists) they could already do. Disgraceful.

Posted by Peter Driscoll | August 5, 2007 1:24 PM

Didn't Clinton roll back some of the exec. branch surveillance powers? I feel like there was a small move in that direction.

It wasn't small at all, it was the 1996 anti-terrorism legislation and pushed the Arab vote to Bush in record numbers. No one else seemed to notice.

Posted by Ed Marshall | August 5, 2007 1:28 PM

Ed: sounds interesting. Can you elaborate?

jenny

Posted by jenny | August 5, 2007 2:03 PM

Seconding Jenny.

I thought 'rolling back exec. branch powers' in NB's post meant diminishing those powers, but, if I've understood EM, it means reducing the limits on those powers. Is this right? What happened?

Posted by J | August 5, 2007 2:26 PM

It's this sort of thing that makes Ron Paul sort of attractive.

Posted by Kelly Coyle | August 5, 2007 2:26 PM

This cleans up the Gonzales mess and allows the government to search all electronic communication without a warrant in the name of doing something (spying on foreign terrorists) they could already do.

It most certainly doesn't allow the government to search "all" electronic communication. It merely allows to the government free reign with vis a vis electronic communications involving foreigners. Y'all seriously don't want the national security establishment sifting through such communications for terms like "dirty bomb" and "cyanide gas"? Do y'all seriously think it would be feasible for the government to run to a judge and get a warrant every time to undertake such surveillance given the fact that there are billions of such communications? Grow up.

I know this administration has been a clusterfuck in myriad ways. Like all sane people I wish we could go back in time and undo Iraq. But surveillance of electronic communications -- especially if it's limited to that involving foreign elements -- seems a rather obvious and necessary program if we're really serious about the protecting ourselves from attacks by terrorists.

Posted by Commie | August 5, 2007 2:37 PM

Anti-terrorism and Effective Death Penalty Act of 1996 was something Clinton had going before OK City. It wasn't going anywhere until that happened.

It rolled back Habeus Corpus and expanded FISA, never convicted any terrorists but it was widely used to deport Muslims based on secret evidence.

Posted by Ed Marshall | August 5, 2007 2:37 PM

Y'know, it's been a terrific cognitive dissonance experience, reading about this little liberal confab, all a-twitter about the precise twist on today's clever debating point, while the Dems manage to roll over YET AGAIN on what an unsophisticated convention non-attendee might consider a pretty fundamental matter of principle.

Ron Paul and Kucinich are the only "attractive" candidates, period. Most of the rest are so far out of their depth it's almost funny -- and that definitely includes the sainted Obama, with his novel Pakistan strategies. The New Yorkers are simply odious. Primigenius, above, has it exactly right. This election is shaping up as something worthy of a banana republic. Remember when folks used to call the remnants of the USSR "Upper Volta with nuclear missiles"? Well.....

Posted by sglover | August 5, 2007 2:43 PM

Anyways, the Democratic presidential candidates all seem opposed to this, but I'd put the odds of any of them actually taking action to reduce their own powers once in office at approximately zero percent.

the above line reminded me of something someone said in a comment over at my site. he explained the democrat's capitulation with the theory that everyone knows the next president will be a dem, and so the dems want to grab presidential power too.

but that doesn't really explain this bill. it has a 6 month sunset clause. i think you missed that part too, matt.

Posted by upyernoz | August 5, 2007 2:49 PM

It most certainly doesn't allow the government to search "all" electronic communication. It merely allows to the government free reign with vis a vis electronic communications involving foreigners.

And if there's anything recent history has taught us, it's that no politician or administration would ever parse language to justify whatever the fuck they want.

Hear my mordant chuckle: Heh heh heh.

Posted by sglover | August 5, 2007 2:51 PM

But surveillance of electronic communications -- especially if it's limited to that involving foreign elements -- seems a rather obvious and necessary program if we're really serious about the protecting ourselves from attacks by terrorists.

the problem, dear commie, is that the democrat's amendment to permit warrantless surveillance of purely foreign communication was rejected by the white house--even though that "loophole" was precisely why it claimed to be pushing for the legislation.

after the democrat's proposal was rejected, they simply rolled over and passed exactly what the white house wanted. it went way beyond permitting foreign surveillance. it removed restrictions against surveillance of people in the u.s., and removed a lot of the executive branch's oversight requirements. they no longer have to report to congress about any surveillance that involves people in the u.s.

while technically purely domestic surveillance without a warrant is illegal, the bill takes away any possible way for us to find out that's what they're doing. the bush administration could order the NSA to wiretap obama, clinton and edwards' campaign headquarters if they want to. it's illegal, but the FISA amendments took away any meaningful review so they'd probably get away with it.

Posted by upyernoz | August 5, 2007 2:56 PM

It most certainly doesn't allow the government to search "all" electronic communication.

It most certainly does. Don't you get it? There is no way to search some of it without searching all of it. Right now, the government is wired into everything via the telecom companies—and Moore's Law dictates that sooner or later they'll actually be able to analyze all of it.

This bill guts the Fourth Amendment as surely as MCA gutted habeas corpus. This is the cornerstone of what will surely be, sooner or later, an outright, full-stop authoritarian state. And all in deference to the most despised president in modern history!

Has it perhaps occurred to anyone, anyone at all, that the Congress wasn't steamrolled—but that they actually don't mind the evisceration of the foundations of our jurisprudential tradition?

Meanwhile, the conventioneers didn't even notice, and shrug it off once they hear about it. A real stunner.

Posted by Anon | August 5, 2007 2:59 PM

...while technically purely domestic surveillance without a warrant is illegal, the bill takes away any possible way for us to find out that's what they're doing. the bush administration could order the NSA to wiretap obama, clinton and edwards' campaign headquarters if they want to. it's illegal, but the FISA amendments took away any meaningful review so they'd probably get away with it.

Just like they "got away" with torture and rendition and the killing of Pat Tillman and a successful mid-term election? I think it's the progressives who are being paranoid here. Abuse of the system as envisioned in some quarters requires an almost perfect ability to keep thousands of people from talking to reporters, as well as a complete subversion of the first amendment, as well as preventing Democrats from winning elections.

Posted by commie | August 5, 2007 3:05 PM

Commie, people have been talking to reporters. And the Congress. In full view. And yet still people persist in believing that these illegal powers will be used wisely and judiciously. By Dick Cheney.

Posted by Anon | August 5, 2007 3:11 PM

I'm so fucking tired of this. When does it stop? When do the Dems grow a fucking pair of balls? When do Pelosi and Reid start acting like leaders and holding party ranks?

Fuck this.

Posted by MRL | August 5, 2007 3:18 PM

Hey, Matt, you got any dirt of Throbert McGee from your TNR people?

Posted by Ed Marshall | August 5, 2007 3:18 PM

Here is how Representatives voted:
http://clerk.house.gov/evs/2007/roll836.xml

This is really the Senate's fault. The House had a bill that they tried to pass on Friday with more safeguards, requiring individualized warrants, and not giving Gonzales the power. It couldn't pass because they needed a 2/3 majority because it didn't have a rule (it was a rushjob). This bill was based on a deal with McConnell, giving him what he said he needed. The White House then told him they needed more and that "more" essentially meant making Gonzales in charge of which Americans get to be wiretapped, is what the Senate passed before they went on vacation. They rationalized it by saying, well it's only for six months, which is a crock. The House Leadership was then in a bind--members think there will be a terrorist attack soon and don't want to be blamed for nothing being passed before the break. Republicans would have pounced. They should have passed the House Bill and gone to conference in September, but they caved, unfortunately, and put the Senate bill on the floor. Conservative Dems and Republicans passed it. It is too bad all of the bloggers were in Chicago, because this happened without much publicity.

Too many Democrats are still living in 2002-2003. This administration cannot be trusted--and they need to realize this.

Posted by Castorp | August 5, 2007 3:28 PM

Abuse of the system as envisioned in some quarters requires an almost perfect ability to keep thousands of people from talking to reporters, as well as a complete subversion of the first amendment, as well as preventing Democrats from winning elections.

Did you happen to notice how our little Iraq adventure was launched at a time when it was never easier to distribute and obtain information of all kinds?

The protections of the Constitution are only as good as the people interpreting and enforcing them. The leadership caste has essentially decided that while it's nice to pay lip service to republican (lowercase 'r') ideals, in practice they're a dead letter. MY's blithe reaction to this matter is practically a textbook example of this kind of elite abdication.

Posted by sglover | August 5, 2007 3:48 PM

"Ron Paul and Kucinich are the only "attractive" candidates, period."

Dennis Kucinich? The same twit who thinks it is some sort of national scandal that when you buy gasoline it summer you might get 0.1% less than the pump says because the gasoline has ever so slightly expanded?
I applaud your frustration with the mainstream candidates, but the sad fact is that the alternatives appear to suffer from their own conspicuous lack of common sense. I really can't just the judgement of a guy who thinks this is in any way any sort of issue.

Posted by Maynard Handley | August 5, 2007 3:56 PM

Then, perhaps, at some point years from now, some story will break about a truly abusive use of these surveillance authorities (just look at what Elliot Spitzer did with the State Police and imagine what uses an oversight-free mass wiretapping scheme could be put to) and there'll be some kind of rollback.

Odds on the GOP discovering a libertarian streak and using it to impeach a Dem president?

Actually, no. This is such a fucking disgrace. And I want to know what kind of Terrah Terrah Bush held over the head of Reid and Pelosi.

it's illegal, but the FISA amendments took away any meaningful review so they'd probably get away with it.

And it also torpedoes the attempt to challenge Gonzales. Nice work, Dems: your soft underbelly legalised all the impeachable shit he's been doing.

Posted by pseudonymous in nc | August 5, 2007 4:11 PM

I applaud your frustration with the mainstream candidates, but the sad fact is that the alternatives appear to suffer from their own conspicuous lack of common sense. I really can't just the judgement of a guy who thinks this is in any way any sort of issue.

I didn't know Kucinich made an issue of the thermal expansion of gasoline. Can't say I'm surprised, really. Dems have always tried to turn any discussion of energy issues into a session of Blame the Seven Sisters. (Here, there is a clear difference between the parties. The GOP prefers the Seven Sisters in a dominatrix mistress role.)

Honestly, I'm not much of a fan of Kucinich, but he and Gravel are the only Dems who've spoken candidly about the larval imperial garrison state. All the others are studiously fixing their gaze elsewhere.

Posted by sglover | August 5, 2007 4:13 PM

I applaud your frustration with the mainstream candidates, but the sad fact is that the alternatives appear to suffer from their own conspicuous lack of common sense.

Yeah, I remember when Dennis was all over the Chemtrail controversy. *sigh*

Posted by Ed Marshall | August 5, 2007 4:16 PM

Not to change the subject, but did Eliot Spitzer really do anything? They asked the State Police to record where they transported Joe Bruno. That seems like it's properly public information. Mr. Bruno spun that as "using the police to spy on people," and the media have been hyping the controversy, not the underlying facts.

Is there really an issue here, other than cutting Mr. Spitzer down a peg?

(Full disclosure: my membership in the Joe Bruno Fan Club lapsed a while ago.)

Posted by George | August 5, 2007 6:00 PM

Get back to me after the American public has proven that they can deal with a tragedy without going apeshit with fear.

Because as it seems to me, they haven't. And politicians are just responding to that reality.

The blogosphere is too fucking patriotic sometimes. This is one of those times.

Posted by Karmakin | August 5, 2007 6:30 PM

Whichever Dem wins in 2008, the first wiretap/data collection they should authorize is the computers and phones and the RNC and moving tap on Karl Rove.
That is the only way Republicans would ever support the roll back of executive power.

Posted by surveil this | August 5, 2007 9:52 PM

while technically purely domestic surveillance without a warrant is illegal, the bill takes away any possible way for us to find out that's what they're doing. the bush administration could order the NSA to wiretap obama, clinton and edwards' campaign headquarters if they want to. it's illegal, but the FISA amendments took away any meaningful review so they'd probably get away with it.
Posted by upyernoz

Paranoid Lefty garbage.

Like the downing of TWA Flight 800, the Jewish/CIA Plot to down the WTC and blame it on the Religion of Peace so Bush buddies could get all the Oiiiilllll!!! - it requires Lefties to accept the silent conspiracy of all the thousands of soldiers and cops that they swear they Absolutely Support

And, in the hypothetical, say, that a known AQ agent from Yemen pops up in a new country (Pakistan) and uses a wireless call to a known Islamist cutout agent in the UK who in turn calls a member of Barack Obama's security team in Florida? Shouldn't we at least have a chance to detect the existence of that comms network? Then get a warrant? You cannot get a warrant to start with unless you are not in some way monitoring the enemy. THen, once the program takes note of enemy combatants making contact inside the USA, you have your splendid lawyer in robes decreeing to make a covert wiretap of Obama's security team by warrant. Then see if it is part of a Muslim plot to get Obama, or that the security team member is a spy for Islamists, or worse, part of a faction seeking to cut a secret deal?

Wouldn't it be better for the American voters if we are looking for such enemies within, and once detected by electronic surveillance, then put under judges warrants to tap their phones, search their houses, go over every financial transaction the Islamist contact has engaged in? Then when or if enough info is developed under legal warrant to arrest the Islamist American on criminal charges - the voters can assess the propriety of the arrest?

And as a few other posters have said, the 2002 electronic program authorized by Congress was done in record time simply because it was all the stuff Bill CLinton asked for and filed in his 1996 Counterterror Surveillance Act that was sabotaged and rejected by members of his own Party.

If Lefties are actually serious about "civil liberties" outside the context of their Jihadi pals, the dead silence of the Left on Janet Reno, Noble Algore, and Jamie Gorelicks effort to eviscerate the 2nd Amendment stands out.

Reno, with Gorelick her competent lackey and with Administration support - argued in briefs that the 2nd exists only as a right for paid soldiers or agents of the ruling government to arm themselves. "The people are in no need of a right to firearms with soldiers, federal agents, cops, and National Guard there to protect them. The Founders only intended arms for government to keep order and for militias."

One incredulous Senator called the Clintonista effort in the 90s to deny citizens had a right to keep and bear firearms, only their Ruler and minions of the State - as the "Redcoat Protection Act".

Posted by Chris Ford | August 5, 2007 10:07 PM

There are actually good reasons why the FISA laws probably should have been amended, but of course it seems strange to put the whole basket into the Executive Branch's hands, as if that's the whole problem with our current surveillance laws.

The reason something had to change was simple enough. Let's say you were an NSA analyst (Sounds exciting doesn't it?) monitoring the communications of a known terrorist threat, we'll call him terrorist threat X, or TTX for short. You can intercept his communications because he lives in Damascus, Syria and is a foreigner. You consider his communications important not merely because they tell you what TTX may try to do, but because he may have evil friends-perhaps evil friends who are a greater national threat than even TTX is. So you run through the list of all the phone calls he makes, and it's a pretty messy set of data. He's probably got some calls he makes to his mom every Sunday, the fallafel guy, Habib the pipe bomb maker, et cetera. After tracking his communications for some time and hearing all sorts of snippets about TTX's desire to blow up the Statue of Liberty, kill all the Americans and die in Allah's name, that sort of thing, you discover that he's started calling numbers with Los Angeles area codes. Because your operation is classified Super Duper Top Secret//Extra Crispy//X b'GOK!, you can't get a warrant from a criminal court, and because the FISA court only provides warrants for foreigners, you don't have any legal avenue for the surveillance of what would seem to be quite possibly a very important set of communications. After all, isn't the main point of the surveillance of terrorists to prevent potential attacks on our own soil?

This problem could have been solved differently. It bothers me that the Executive Branch seems quite deliberately to want to turn traditional military resources towards its own citizenry. I am particularly bothered by the lack of a clear delineation of the uses that such surveillance can be put. As FISA now stands, it seems like... Let's say an American civilian who does business selling Osama's mama fingernail polish gets "swept up" in one of these surveillance missions. It is technically possible now for his communications to be monitored not for any wrong doing, but because of his unknowing association with a suspected terrorist figure (for, as we all know, Osama's mama's one tough cookie). So maybe they figure out that he's just a nail polish salesman, but he let's it slip that he's a major marijuana dealer over the phone, or, well, maybe he reveals himself to be involved in some sort of standard criminal activity that might interest the FBI. There is nothing at this point stopping the FBI from picking up the ball and nailing him for criminal activities, using the surveillance evidence they gathered when they were monitoring Osama's vicious killer mom. The only thing stopping this from happening are the guidelines set by the Attorney General for "minimization" and what he defines as a "threat," which, it seems to me, really should fall within the jurisdiction of the courts.

Okay, so maybe that doesn't scare you that much. Presumably if a case like this went to court, it would result in a constitutional challenge that would (maybe) overturn the FISA provisions. But if the Justice Department is smart, they would never base a prosecution on that sort of thing-it would just be a useful tip off that might lead the FBI to initiate its own investigation, which would never include as part of it's case the original surveillance, so no one would know about it. After this happened one or two times, you could imagine the light bulbs going off. Some Nixonesque figure running the Justice Department could see in the new FISA guidelines a backdoor through which large scale surveillance of Americans could be performed under the pretense of foreign intelligence gathering and it would be legal, since he gets to set the terms regarding what a "threat" is, and what the "minimization" procedures should be. Since it all stays behind the firewall of compartmentalized information, only certain people working for the Executive Branch would even know what was going on.

This is just a piece of informed speculation, so if there are any legal analysts out there who understand the law well enough, I'd be happy to see someone poke a hole or two into the dystopian fantasy I've just outlined. I have some familiarity with how NSA surveillance works, but I am not sure that there would ever be cross channel talk between the NSA and the Justice Department, even to get authorization for this kind of spying. Presumably the FBI has it's own foreign intelligence mandate, and is basically held to the same legal standard that the NSA is, so even if there was no departmental cooperation, it still wouldn't eliminate the problem (it would make abuses even more likely, actually). So if there is any outstanding reason why this scenario couldn't occur, I'd like to hear what it is.

Posted by Gordon Lightfoot | August 6, 2007 2:20 AM

One major problem in this issue is that our shitty educational system renders American citizens so ignorant that they can be easily conned by the White House.

1) TWO Points:
a) The NSA often CAN NOT break the encryption of small terrorist cells.

The NSA exists because it can eavesdrop on and break the codes of major military organizations --BECAUSE the huge volume of data that has to be exchanged by such organizations requires that they use COMPUTERIZED ENCRYPTION. Such encryption can be broken if you use massive amounts of computer power.

However, the NSA often CAN NOT break the encryption of small terrorist cells. That's because the low VOLUME of such communications allows use of the UNBREAKABLE One Time Pad Method.(OTP)
See http://en.wikipedia.org/wiki/One_time_pad
Al Qaeda uses the One Time Pad -- there are news reports of it being found on computers seized in Afghanistan raids.

The traditional objection to the OTP -- the need for sender and receiver to have a key equal in size to the messages -- is no longer a problem. You can buy Sony USP memory drives whose memory chip is the size of a fingernail but can store the Encyclopedia Britannica. A courier can swallow such a chip, fly to America, and drop the chip off at a dead drop site with zero risk of interception.

b) It has never been difficult for foreign commands to communicate with spies in the USA. It has been going on for decades. They simply send OTP transmissions with Shortwave radio. You can hear OTP "Numbers Stations" frequently if you have a shortwave radio. See http://en.wikipedia.org/wiki/Numbers_Stations
Again, there are news reports of Al Qaeda using shortwave.

c) Alternatively, someone sets up a Hotmail account with false info. A sender in Europe opens the account and types in the encrypted OTP message in a draft file. The receiver in USA then goes to a public library and uses a public Internet terminal to logs into the account and reads the message.
No email has to be sent, hence Carnivore gets buckus. Again, there have been reports of Al Qaeda using this method.

There are other ways as well.

d) WHAT is HARD is for spies in the USA to communicate securely BACK to foreign commands. We have an extensive surveillance system to quickly triangulate onto any shortwave transmissions made inside the USA, for example.

Although highly mobile Shortwave transmitters running off of a car battery can be easily made or purchased.

2) The point is that Bush's warrentless surveillance poses a major risk of evolving into a system to surveil -- and eventually , Oppress -- the American people while providing limited utility against REAL terrorists.

Posted by Don Williams | August 6, 2007 12:31 PM

We have already seen how Bush lies about Intelligence to mislead the American People.

His lie that Sept 11 occurred because "they hate our freedom" stood to be exposed by TV broadcasts of Bin Laden's statements.

So after Sept 11 , Condi Rice went to the CEOs of the 5 TV networks and twisted their arms to halt broadcast of Bin Laden's statements.

Her rationale -- that Bin Laden would use such broadcasts to send secret messages to Al Qaeda -- was an obvious lie.

Bin Laden had to no need to resort to "If you see me tug my right ear on ABC News, nuke Cleveland" methods because he had far better methods available as described above.

But what Condi managed to do was DECEIVE the American People --by concealing from them the legitimate grievances that the Islamic World has against the US government.

That HARMED national security -- because our failure to rein in malign overreaching by special interest groups like Big Oil and the Israel Lobby -- has greatly aided Al Qaeda in getting the support of the Islamic World. It has helped Al Qaeda to find sanctuaries, to hide and to survive.

Posted by Don Williams | August 6, 2007 12:34 PM

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