Obsidian Wings

Where I'd Like to See FISA Challenged

by Charles

The Authorization to Use Military Force was tantamount to a declaration of war against al Qaeda.  In my view, signals intelligence is part and parcel of a president's war-making arsenal and falls under category of "necessary and appropriate force".  In the interests of national security, if the NSA intercepts a communique between Zahawiri and a bloke in New Jersey, I'm not going to have kittens if it's done without a court order.  However, I would have a litter of twelve if none of the parties involved is Zawahiri or some other known al Qaeda suspect (the NSA's inserting of persistent cookies into the computers of those who visit the NSA website might give me a contraction).

Moral Values In Action

by hilzoy

Sometimes I wonder: will the Bush administration ever run out of issues on which to take completely appalling positions? They have defended torture and extraordinary rendition; they defend their right to imprison American citizens without warrants or charges, indefinitely; they seem to think it's OK both to defy the law and to spy on citizens without anything resembling legal checks; their AIDS prevention policies (backed up by our money) focus on unproven abstinence programs at the expense of programs favoring condoms, thereby sacrificing people's lives to conservative moral fantasies; they out undercover CIA agents for petty political reasons; they have saddled our children with huge amounts of debt without managing to do such basic things as really committing to rebuilding New Orleans, doing even the most basic things to secure our country, and so forth; they have gotten us into a needless war whose consequences will at best be very, very bad -- what on earth is left?

Human trafficking, that's what. From Knight-Ridder, via Balkinization:

"Three years ago, President Bush declared that he had "zero tolerance" for trafficking in humans by the government's overseas contractors, and two years ago Congress mandated a similar policy.

But notwithstanding the president's statement and the congressional edict, the Defense Department has yet to adopt a policy to bar human trafficking.

A proposal prohibiting defense contractor involvement in human trafficking for forced prostitution and labor was drafted by the Pentagon last summer, but five defense lobbying groups oppose key provisions and a final policy still appears to be months away, according to those involved and Defense Department records."

What sorts of "human trafficking" are at issue? Just buying women as sex slaves and little things like that.

"Bush declared zero tolerance for involvement in human trafficking by federal employees and contractors in a National Security Presidential Directive he signed in December 2002 after media reports detailing the alleged involvement of DynCorp employees in buying women and girls as sex slaves in Bosnia during the U.S. military's deployment there in the late 1990s.

Ultimately, the company fired eight employees for their alleged involvement in sex trafficking and illegal arms deals. (...)

This fall, the Chicago Tribune detailed how Middle Eastern firms working under American subcontracts in Iraq, and a chain of human brokers beneath them, engaged in the kind of abuses condemned elsewhere by the U.S. government as human trafficking. KBR, the Halliburton subsidiary, relies on more than 200 subcontractors to carry out a multibillion-dollar U.S. Army contract for privatization of military support operations in the war zone.

The Chicago Tribune retraced the journey of 12 Nepali men recruited from poor villages in one of the most remote and impoverished corners of the world and documented a trail of deceit, fraud and negligence stretching into Iraq. The men were kidnapped from an unprotected caravan and executed en route to jobs at an American military base in 2004."

But despite being instructed by Congress to create a policy to prevent human trafficking, the Bush administration has yet to come up with one, "at least in part because of concerns raised by the defense contractors." The contractors' concern?

"The lobbying groups opposing the plan say they're in favor of the idea in principle, but said they believe that implementing key portions of it overseas is unrealistic."

Wrong. Some proposal is literally "unrealistic" when it is actually impossible, or close to it. Thus, it is unrealistic to think that I will fly to work tomorrow by flapping my arms, or even that I will roll snake-eyes one hundred times in a row. It can also be unrealistic to think that someone else will do something, at least if you're not in a position to influence that person. But it is not in the least unrealistic to ask a contractor to verify that its subcontractors do not engage in human trafficking. If contractors were held accountable for their subcontractors' violations of human trafficking policies, I'm sure we would see them develop ways of verifying compliance pretty quickly.

What they mean, presumably, is that this would be too costly and time-consuming. But things only count as "too" costly and time-consuming when they cost more than the gains they realize are worth. To the extent that administration officials buy into the defense contractors' claim that it is "unrealistic" to expect them to make sure their subcontractors are not trafficking in human beings, they necessarily buy into their view of how much it matters that women not be bought and sold as sex slaves, and that men in impoverished villages in the third world not be tricked into indentured servitude in Iraq. Namely: it doesn't matter all that much.

What's next: the Bush administration coming out in favor of female genital mutilation?

Delayed Reaction to NSA Wiretapping

by Charles

After absorbing over a week of news regarding the warrantless surveillance by the NSA, I thought I'd write this down to keep it all straight.  Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason, and several of those calls have been made.  From what I've seen so far, the person who has written the most clearly on the NSA surveillance matter has been Orrin Kerr, along with a few others such as Cass Sunstein (more from Sunstein here).  Going through the list of fundamental questions:

Post-Christmas Open Thread

by hilzoy

What would Bill O'Reilly make of me, I wonder? I love Christmas. I just love it. Partly this is because I have a very Christmas-y family, and we always had very Christmas-y Christmases. We made gingerbread cookies to hang on the tree; we made all sorts of decorations; we went carolling (except for my Mom, who is tone-deaf. The rest of us, however, all know all the verses of an alarming number of Christmas carols, as a result of carolling.) Every year, my Dad, who is really wonderful at reading things aloud, read part of A Christmas Carol. (Note to people with kids: I highly recommend this. Not only is it a great story, but there are lots of occasions when it's really handy to have large chunks of it memorized. To pick one example: just think of how many times one stares at an apparently endless mess of things one has let slide, things that must be attended to right now: at such moments, I find, saying to myself, in a dismal, gloomy over-the-top voice, "These are the chains I forged in life!" is truly the only possible response.)

Moreover, no doubt thanks to something my parents did right, it was never the stressful occasion I gather it is for other people. Christmas was always partly about the fun of getting presents, of course (we were kids, after all), but the real fun was trying to figure out what to get for everyone else: ideally, something it had never occurred to them to want, but which was absolutely, totally right. And yet this never became a burden or anything; it was just fun to try to find something great. (My Dad was a particular challenge: he always claimed only to want tennis balls. And he was telling the truth. It was a glorious day when I figured out a system for finding good presents for Dad: think of all the day-to-day items it had never occurred to him to replace -- dressing gown, wallet, etc., all of them ancient and full of holes, since my Dad is, to put it mildly, not the sort of person who bothers about that stuff -- and replace them.)

And getting together is always great. I really like everyone in my family, and (more luck!) I like my siblings' spouses too. We don't spend time pushing one another's buttons: we don't have buttons, for one thing, and if we did, the rest of us wouldn't spend time pushing them. And now that I have nephews, there's the further fun of trying to make Christmas as fun for them as it was for us.

There's just one thing: Christmas was not, for us, a religious holiday. This wasn't just because we weren't religious; it wasn't until I converted to Christianity that I realized that Christmas was a religious holiday for anyone. I mean: I knew that Christmas had to do with Jesus, but I'm not sure it had really occurred to me, as a kid, that Jesus had anything to do with religion. I had a book of Bible stories, but then I also had books about Greek and Norse myths, Grimm's fairy tales, and the like. I don't think I drew distinctions between them. Why did we celebrate a story about Jesus, but none about Zeus or Rumplestiltskin? It never occurred to me to ask, any more than I wondered why the Easter Bunny and groundhogs had their own holidays, but horses and raccoons did not.

So: we didn't celebrate generic 'holidays'; we celebrated Christmas. Moreover, we did it right: generosity and warmth and celebration, not greed and neurosis and stress. (Or at least: no more greed than is inherent in being a kid thinking about stockings.) But religion had no part in it at all.

-- I'm feeling sleepy today: the normal sleep deficit induced by being woken up at what is, for me, an incredibly early hour, several days running, by my delightful nephews piling onto the bed. So: how was your Christmas?

No Relief To Offer

by hilzoy

I have written previously about the case of Abu Bakker Qassim and A'del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that -- oops! -- they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

"The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."

The second is that there is nothing he can do about it:

"In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer."

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I'll stop for a moment to let that sink in.

Which Types of Electronic Surveillance are Covered by FISA?

I have all sorts of thoughts on the current intelligence issue, but they will have to wait until tomorrow after I fly to Denver. 

There is one underveloped point which was made by former associate attorney general (under Clinton) John Schmidt in the Chicago Tribune.  "Person" isn't the only important definition in the FISA authorization.  Not all forms of electronic surveillance are covered.  Here is the authorization language:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Now I obviously haven't heard a complete description of the secret monitoring program because it is, well, secret.  But the leaks we have been hearing tend to involve attempting to track the network of terrorists by linking known terrorists to other people by their calls.  (This leads to the international calls being connected in the United States issue for instance). F(1) would tend to suggest that FISA does not cover many of those types of situations.  If you tap a known terrorist's cell phone outside the United States, even if he calls someone who falls in the definition of "a United States Person" it is highly unlikely that you are "intentionally targeting that United States person".

F(2) also shows how ill-suited this law is for post-70s technology.  It is limited by "if such acquisition occurs in the United States" which is practically no protection at all in the days of satellite and off-shore switching. 

Also, it isn't clear at all how FISA applies to all sorts of signal intelligence work.  It isn't all about the content of the communications (often things will be encrytped or won't make sense).  Traffic analysis can be just as important.  If you see a sharp spike in communications between cell members and/or suspected cell members (even if you don't know what they are saying) followed by a communication silence you can bet they are about to initiate some sort of action.  How does FISA apply?  Section (f) seems to be all about content.  My point is not that I am comfortable with the whole program (as little as we know about it).  But I definitely don't see this as a clear-cut case at this point. 

This also highlights the problem of the war/law enforcement models.  I'm much less concerned about these types of taps so long as the information is NOT used in a criminal mode.  There is much less chance of this bleeding into areas of serious domestic concern (like overzealous anti-drug enforcement for example) if it can only be used for national security intelligence purposes, and not for criminal prosecutions.  But if we define the whole war on terror as something that has to get pushed through the criminal system that is going to be problematic. 

Anyhow, off to San Jose to pick up my grandmother and then to Denver. 

The FISA Court Is Upset

by hilzoy

From the Washington Post:

"The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?" (...)

Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court. (...)

Benson said it is too soon for him to judge whether the surveillance program was legal until he hears directly from the government.

"I need to know more about it to decide whether it was so distasteful," Benson said. "But I wonder: If you've got us here, why didn't you go through us? They've said it's faster [to bypass FISA], but they have emergency authority under FISA, so I don't know.""

If any of the judges are talking about disbanding the FISA court in protest, they must be seriously annoyed.

As it happens, though, the article contains an explanation of the government's reasons for bypassing the FISA court (out of order; the following quote appears between the second and third excerpts above):

"One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up.""

Gosh: they needed to have an actual reason to place citizens under surveillance? Talk about onerous requirements! This might be an even more pitiful explanation for not using FISA's emergency provisions than the one offered on Monday by General Michael Hayden, the Principal Deputy Director for National Intelligence:

"GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it."

FISA involves not just actual paperwork but marshaling arguments! What a concept! Still, I suppose I should cut them some slack: after all, it has been obvious for some time that marshaling arguments is something this administration finds difficult. At least now they're admitting it.

***

While I'm being snarky, I have to note this gem from Bush's press conference on Monday:

"Q Thank you, Mr. President. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."

Q Well --

THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times."

A 'check' is something that is capable of stopping you from doing whatever you want. Telling several members of Congress what you are doing is not a 'check', especially not when those members are sworn to secrecy about everything you tell them. This is like saying that the fact that your parents could have stopped you from joining the Marines, since, after all, you did call them from boot camp to tell them that you had enlisted.

As for the President's word of honor operating as a 'check', the less said about that, the better.

Play Break!

by hilzoy

Time for a break from the NSA story. While doing actual work, I ran across a fascinating study (behind subscription wall) in Evolution and Human Behavior. It's called 'Sex differences in response to children’s toys in nonhuman primates (Cercopithecus aethiops sabaeus)'.

Here's what it's about: as most parents know, little boys tend to be more interested in toys like trucks, and little girls in toys like dolls. (I was an exception: someone gave me a doll once, and I dissected it.) There is no obvious way to decide whether this is innate or a cultural artifact by watching human children. So why not see whether the same gendered toy preferences exist in, oh, vervet monkeys?

Guess what? They do.

"The percent of contact time with toys typically preferred by boys (a car and a ball) was greater in male vervets (n = 33) than in female vervets (n = 30) ( P < .05), whereas the percent of contact time with toys typically preferred by girls (a doll and a pot) was greater in female vervets than in male vervets ( P < .01). In contrast, contact time with toys preferred equally by boys and girls (a picture book and a stuffed dog) was comparable in male and female vervets. The results suggest that sexually differentiated object preferences arose early in human evolution, prior to the emergence of a distinct hominid lineage."

Discuss.

(Graphs and photos below the fold.)

Intellectual Integrity Watch: Clinton And Carter Did It Too! Edition

by hilzoy

Yesterday, Matt Drudge ran a story with the headline: "FLASHBACK: CLINTON, CARTER SEARCH 'N SURVEILLANCE WITHOUT COURT ORDER". It has been picked up by all sorts of conservative blogs, including Pyjamas Media, Powerline, RedState, and lots, lots more.

The only problem is that, as Think Progress explains, the orders signed by Carter and Clinton both say that those warrantless searches can only be carried out if the Attorney General certifies that the searches in question will not be carried out on US persons. Think Progress has the links to the laws cited by both orders; check it out for yourselves.

The problem with what Bush did is not that he ordered warrantless searches, period. The point is that he ordered them on US citizens, in cases in which the law forbids it. Both the Clinton and Carter orders, like the order by Reagan that I discussed earlier, require that any warrantless surveillance be carried out in accordance with the law. That's not a trifling detail; that's the rule of law.

There are a lot of just plain bad arguments about the law on conservative blogs at the moment. (I don't mean careful blogs like Volokh, but places like PowerLine and RedState and the like.) And while a lot of them are just repeating things they have heard elsewhere, I find it hard to understand how the people who come up with these arguments in the first place are operating in good faith.

When describing a law that says that you can get a warrantless wiretap on a foreign power as defined in section 1801, subsections a, b or c, it is not OK to omit the restriction to subsections a-c and then cite subsection d to "show" that this applies to terrorists. When describing a Presidential Order that makes it clear that warrantless surveillance can be carried out only in accordance with a section of a law that specifically requires that the object of the surveillance not be a US person, it is not OK to simply omit that fact and say: hey, what Bush is doing is nothing new.

I always click through to the originals to check what people are saying, at least if I care enough about the subject to want to have an informed opinion. I'm just that kind of person. But even if I weren't that kind of person, I would click through every link on arguments on this topic right now, because there's a lot of misinformation flyng around.

FISA Judge Resigns

by hilzoy

From the Washington Post, under the headline "Spy Court Judge Quits In Protest":

"A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work. (...)

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court.""

I'm just posting this quickly, since I'm not sure what it means. By an odd coincidence, he's the judge in the case of the Uighur detainees at Guantanamo. Would any of the lawyers present care to comment?