Wednesday, August 8, 2007

FISA BS Part III: "Foreign"

Another misleading story being told (culprits as noted below) is that the Act only allows surveillance of "foreign" communications. The BushCo people in particular have been pounding the talk shows with spiels about how this legal construction is sooooo "limited" and "targeted", etc etc. Pure bullshit.

While it is true that the surveillance authorized by this Act is, on its face, limited to "foreign" communications, the fact is that this only excludes communications that are purely domestic in nature. In other words, communications that never leave the US at any point in their transit. This means that it authorizes interception of communications that do leave the US at any point in their transit.

Anyone who understands how modern communications systems work can readily perceive the tricks available here. All emails and most phone calls are digital. Phone calls may not start out that way, and may not end up that way, but typically they are digitized at some point in transit. Digital means packets. Internet protocols are designed such that the packets (very small chunks of data) don't all have to travel together, but can be routed individually over the fasted route available, and then reassembled at or near their destination. In general, the routes the packets take have no geographic restrictions. They go by the fastest route, which is rarely (if ever) a straight line, and may, in fact, be highly circuitous from a geographic standpoint. In other words, they may very often travel through other countries even if the sender and the recipient are both in the same country.

Furthermore, some large percentage of this data is routed through orbiting satellites. Now, you may ask, are orbiting satellites "within the US" according to the Act? It doesn't say.

And let me tell you who is in charge of answering this question (i.e., interpreting the law): yes, that's right, our good friend Alberto R "Judge" "Fredo" Gonzales. I swear I could not make this shit up. The guy who says the Geneva conventions are "quaint". The guy who wrote the infamous "Torture Memo". The guy who stated publicly that the Constitution does not guarantee the right of habeas corpus. The guy who regularly goes in front of congress and engages in the most obvious of deceptions and prevarications.

And furthermore, it doesn't prohibit intercepting purely domestic communications. The only requirement is the someone (it doesn't say who) must have a "reasonable belief" that the communication has a non-domestic element.

And but does the FISA court have any say in the matter? Well, it can "review" these programs, but no detail about the programs need be provided to the court, its review can only come 6 months after the programs are up and running, and unless the court finds that the AG's interpretation is "clearly erroneous", it must confirm it. Folks, I have a law degree, and I know it doesn't take a fucking law degree to understand that the "clearly erroneous" standard is a laughably deferential standard of judicial review.

So to sum up: when you hear BushCo, congressional Democrats, or talking heads telling you that the "Protect America Act" is sooo tightly restricted to "foreign" communications, don't believe it. They are talking to you as if you are a small, developmentally challenged child.

1 comment:

bgirl said...

We have a colorful history of villainizing the "foreign." What easy, vulnerable targets they make! I obviously don't know what the solution is to the terrorist threat (and of course I acknowledge there is a threat of some kind), but this us-versus-the world (except Mother UK, of course) is unsettling to why would I be comforted by my elected officials telling me, "Don't worry, we're just targeting FOREIGN communications"? Sorry, dudes - that doesn't make me feel any better. It just reminds me that you are always looking for a way to pacify us, patting our wittle heads while simultaneously poking us in the eye.