Letters to the Editor

• Did Mukasey Have "Total Information Awareness" On His Mind?

  [Read the article: Why doesn't the 9/11 Commission know about Mukasey's 9/11 story?]
  [Read more letters about this article: Here]

  The more I think about it, the more I think will white may have put his finger on a key point, earlier in this thread, with regard to the base of insider knowledge from which Mukasey may have let slip the information about a call from Pakistan 'disappearing' into the U.S.:

  I've been following this FISA/Protect America [Act] bit for a while and, as a data analyst, it seems that what the government is likely doing is simply sifting through connection logs of telephone calls routed through the US. Determining who called whom and how the call was routed. They might also expand this to include all internet traffic including email.

  .

  This then would allow the government to determine who a known outside operative is calling/emailing/texting in the US and from there create a tree of potential suspects...snip...

  By storing as much of this communication data as possible, the government could also then find this type of tree quickly for any new potential suspects that are learned about by culling through the history.

  [snip]

  If in fact the government pulled historical logs just after 9/11, it is possible that the government would have learned of a call into the US (in fact maybe many) that had incomplete information so that they couldn't determine where it ended in the US, only that it was from a suspected person and directed into the US. - will white

  http://letters.salon.com/opinion/greenwald/2008/04/03/mukasey/permalink/9e5862f40b0887a34679c709297dabc4.html

  As I understand it, the "Terrorist Surveillance Program" (TSP) is a program (to monitor the content of selected domestic-foreign communications and stored emails) that is the end product of a process that apparently begins with something akin to what Siobhan Gorman unveiled in the Wall Street Journal a month ago - "transactional" data collection on a massive scale, from multiple sources ("TIA"). The House Judiciary Committee Report on H.R. 3773 (RESTORE) speaks approvingly of just such link, or pattern, analysis - Page 16 and Footnote 27: Http://www.rules.house.gov/110/text/110_hr3773rpt_judiciary.pdf - at least with regard to telephone calling records. Pattern analysis that RESTORE, as amended, is written to accommodate and that obviously must be applied to some collection of data, from some source or sources, stored somewhere.

  Accommodating such pattern analysis seems to be a major motivation behind the PAA and subsequent revisions to FISA, in addition to solving the stored-email-located-in-the-U.S. problem that the FISCourt identified (we think - their opinion remains classified). The email solution, at least, seems to have broadbased support in Congress, though it's apparently a technical challenge.

  There seems, in short, to be an undebated de facto consensus in Congress and the Executive Branch, among those versed in the subject, that Fourth Amendment (and FISA) protections do not and/or should not apply to almost any form of (transactional) data that isn't actual conversations in transit between parties in the U.S., or data known to be the content of communications between U.S. parties if stored on U.S.-based ISP servers.

  Thus, I can see someone "reading in" Mukasey to the TSP in a way that would describe its utility to him in a similar fashion to the argument he used in San Francisco:

  'Yeah, under FISA, pre-PAA, we could target that Pakistan safehouse for surveillance without a FISA warrant - even if the tap is made on U.S. soil despite FISA conventional wisdom to the contrary* - and even listen to the content of any safehouse call to or from a U.S. contact via that tap. But, under the TIA/TSP 'system,' we could have also known, almost right away - while ignoring FISA - x, y, z about that U.S. contact because of our gigantic, stored collection of data about U.S. phone numbers (or names, or email addresses, etc.), which we use to screen and filter for "targets" of our TSP communication intercepts (and perhaps for non-TSP, non-FISA, individual foreign targets of surveillance).'

  [Somewhere along the way H.R. 3773 intends for these TSP filtering parameters to be submitted for broad, programmatic FISCourt spying orders.]

  *"[U]ntil the PAA in August 2007, FISA did regulate wire surveillance in the United States [that targeted, wherever intercepted] communications to or from a person in the United States, even if the person was a visiting foreigner; and it also regulated surveillance of stored e-mail in the United States, even if the e-mail was exchanged between two foreigners located abroad." - David Kris

  http://www.brookings.edu/~/media/Files/rc/papers/2007/1115_nationalsecurity_kris/1115_nationalsecurity_kris.pdf

  Kris further clarified with DOJ's Ken Wainstein this March, that wire communications of targeted foreigners, even if intercepted on U.S. soil, are not covered by FISA, either pre or post-PAA, per the Wired link Silash provided bookend earlier; I transcribed part of the conversation where Wainstein confirmed that key point here: Http://letters.salon.com/opinion/greenwald/2008/03/07/surveillance/permalink/b0e57886590600cb4102bbf2bc1a4c13.html

  So in effect, if this theory is correct, though highly misleading in his response, Mukasey could have been arguing for some theoretical benefit of TIA/TSP which 'old-fashioned' warrantless foreign target interception (wherever conducted) would not have afforded. Nevertheless, it is very, very hard to see how a traditional, probable-cause (already, ipso facto, basically established) FISA warrant to also "target" the U.S. contact in communication with that Pakistan safehouse would have provided less information (since instead likelier to be the source of more information) than the x, y, z of the vaunted "Total Information Awareness" domestic database(s) to which Mukasey may have been obliquely referring in San Francisco.

  All of which simply reduces Mukasey's answer to a different specious, deception-laded argument limited to timing and FISA's paperwork burden - both of which are anticipated and accommodated by FISA's emergency provisions for just such scenarios as he posited about Pakistan calling the U.S. with time running out.

  Permalink Thursday, April 3, 2008 08:47 PM