Letters to the Editor
DCLaw1
Published Letters: 996 Editor's Choice: 2
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searching for the Loch Ness "Gap"
[Read the article: The strong and tough Democrats]
[Read more letters about this article: Here]This is really starting to irk me.
Hiatt Editorial:
Administration officials, backed up by their Republican enablers in Congress, argued that they were being dangerously hamstrung in their ability to collect foreign-to-foreign communications by suspected terrorists that happen to transit through the United States.
My infinite gratitude to anyone who can actually identify what part of the current, as-yet unamended definition of "electronic surveillance" in FISA actually applies to these exclusively foreign-to-foreign communications that happen to be routed through the US. Here's that definition, for ease of reference, and again, a FISA court order is not required for eavesdropping that does not fall within this definition, 50 U.S.C. 1801(f):
"Electronic surveillance" means--
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(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.
I am dying to see anything other than a journalist's assumption that there is such a "gap," or some person describing the recent, secret FISA Court decision as saying there is such a "gap," when we cannot read that decision ourselves.
I am increasingly of the mind that there has been a bait-and-switch, or at least that the actual FISA Court decision was far narrower than people describe it (e.g., instead saying that FISA requires a warrant for foreign communications where a person in the US is also a party to the communication, which has required a FISA order for years, without controversy).
I am truly stumped. News reports far and wide assume this "gap" exists, as do a great many people for whom I have great respect. What's worse, how could we ever know if the FISA Court actually said such a gap exists, when its decisions are secret? The mind reels at how prescient the Founders were in insisting that our courts be public, and no decision of theirs secret.
So far, it seems quite clear that the following has occurred. The FISA Court issued a secret decision requiring the government to get a court order for a certain type of eavesdropping (a requirement that is by no means onerous and difficult to meet, let's not forget). This decision, which we may not ourselves see is alleged by people within the government, whose motives we likely cannot ascertain, to have declared that a FISA order is required to tap communications occurring wholly between people outside the US, simply because the communication is routed physically through the US. Based on this unproven assumption, the Congress is compelled to pass an amendment that does not merely resolve this alleged "gap," but in fact exempts from FISA requirements any surveillance "directed at" a person "reasonably believed" to be outside the US, even if US citizens inside the US are also parties to the communication.
This is absolutely appalling.
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Chicago Todd
[Read the article: The strong and tough Democrats]
[Read more letters about this article: Here]Thank you for reminding us of that raid concerning the leaker of the Terrorist Surveillance Program. The confluence of that, the pseudo-acceptance by the administration some months ago that it must adhere to FISA procedures, and the secret FISA Court ruling that supposedly precipitated this new amendment makes me strongly believe that this has never been about foreign-to-foreign communications (the straw man that causes everyone to say "big deal"), but instead about the original warrantless program to intercept a wide swath of communications that may or may not involve people outside the US.
Unless I can be convinced otherwise, the "foreign-to-foreign communications gap" was a canard whipped up to refresh the previous debate on more favorable terms, with the objective being the same as before: to legitimize and legalize the Terrorist Surveillance Program that had been in existence since 2001. And it has worked like magic.
(Also, in my previous post, I referred to the "current, as-yet unamended" FISA. I now realize that the amendment has been signed into law.)
LWM:
Those things are not tin-foil-hat conspiracies, but very real possibilities when you have such a convergence of technological capability, political manipulation, and ever-expanding government power. Such possibilities are the entire reason we are supposed to have a checked and balanced government with guaranteed individual liberties.