FISA: Communication BreakdownTaking advantage of the difficulty many experts have in understanding Sunday’s revision of the Foreign Intelligence Surveillance Act, the Bush administration is pleading exasperation with misunderstandings of the law. Why can’t people understand, asked two senior administration officials in a conference call with reporters yesterday, that the changes to FISA impact only a handful of people? Foreigners, at that! “We’re really talking about targeting people, directed targeting at people overseas,” assured one of them.
Ah, if only it were so.
The most conspicuous aspect of the Protect America Act of 2007 is that nowhere in the bill is there anything approaching individualized suspicion of who is to be monitored. The Attorney General and the Director of National Intelligence can authorize surveillance on anyone “reasonably believed to be outside the United States,” provided that a “significant purpose” of the surveillance is the “acquisition of foreign intelligence information.” Nowhere do the two officials need to specify, to the FISA Court or the Congress, precisely who is under surveillance. They need only tell the FISA Court that their surveillance methods are geared at communications that probably outside the U.S., primarily. If communications involving people in the U.S. are part of that communication chain, so be it — as long as the government says it didn’t mean to acquire the information as a primary “target.” The FISA Court can only object, months after the fact, to the surveillance if those methods are “clearly erroneous.”
Furthermore, “directed targeting” and the National Security Agency go together like toothpaste and orange juice. The NSA does what’s called “traffic analysis” — searching for patterns of communication that merit suspicion. “They map who is in contact with whom, and how many times a day,” explains Kate Martin of the Center for National Security Studies, a critic of the Protect America Act. “They take that information and say ‘This e-mail address and this phone number has a lot of black dots in it (indicating frequent communication).” Then, using a computerized algorithm known as a “selector,” the NSA collects all communications emanating from a particular target, or targets — say, Ramadi in Iraq. “There’s no oversight of those selectors,” Martin says. “The only legal check on them (in the bill) is that they have to be (looking) for foreign intelligence purposes.”
And, again, those foreign intelligence purposes need only be “a significant purpose” of the collection, not the entire purpose. Who might call or e-mail Ramadi? Terrorists, sure. But also American diplomats, humanitarian-aid workers, military personnel, contractors, journalists — all of whom now have their communications ripe for warrantless monitoring. The minimization requirements — that is, what happens to communications the NSA or the Justice Department isn’t interested in — are entirely up to Alberto Gonzales. (Gonzales has to report on “compliance” with such minimization to the Congressional intelligence committees. But the bill doesn’t explicitly say he needs to tell the committees what those minimization guidelines are in the first place.)
That’s some expanded definition of “directed targeting.” Of course, expanding definitions is what the Protect America Act is all about.
